false
0001718512
0001718512
2024-06-04
2024-06-04
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
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
Date of Report (Date of earliest event reported): June 4, 2024
Gates Industrial Corporation plc
(Exact name of registrant as specified in its charter)
England and Wales |
|
001-38366 |
|
98-1395184 |
(State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
1144
Fifteenth Street, Denver,
Colorado | 80202 |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including
area code: (303) 744-1911
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:
¨ |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
|
¨ |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
|
¨ |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
|
¨ |
|
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 |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Ordinary
Shares, $0.01 par value |
|
GTES |
|
New York 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. |
Indenture with respect to 6.875% Senior Notes due 2029
On June 4, 2024, Gates Corporation (the “Issuer”), an indirect
subsidiary of Gates Industrial Corporation plc (“Gates”), issued and sold $500.0 million aggregate principal amount of
the Issuer’s 6.875% Senior Notes due 2029 (the “Notes”), which mature on July 1, 2029, pursuant to an indenture
(the “Indenture”) dated as of June 4, 2024, by and among the Issuer, Gates Industrial Holdco Limited (the “Parent Guarantor”),
the guarantors named on the signature pages thereto (the “Guarantors”) and U.S. Bank Trust Company, National Association,
as trustee (the “Trustee”). The Notes were sold within the United States only to persons reasonably believed to be qualified
institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and outside
the United States to non-U.S. persons in reliance on Regulation S under the Securities Act.
The Notes were issued at 100% of their par value. The Notes bear interest
at a rate of 6.875% per year, payable semi-annually in arrears. The Issuers obligations under the Notes are guaranteed on a senior unsecured
basis by all of the Parent Guarantor’s existing and future wholly-owned domestic restricted subsidiaries that guarantee its senior
secured credit facilities. The Notes are not obligations of, and are not guaranteed by, Gates.
The Issuer used the net proceeds from the offering of the Notes, together
with proceeds of new term loans as described below and cash on hand, to refinance certain indebtedness, including the redemption (the
“Redemption”) of all $568.0 million in aggregate principal amount of its outstanding 6.250% Senior Notes due 2026 (the
“2026 Notes”) and to pay fees and expenses incurred in connection with the offering of the Notes, the Redemption and the other
refinancing transactions. The Redemption occurred on June 4, 2024.
Upon the occurrence of a change of control or upon the sale of certain
assets in which the Issuer does not apply the proceeds as required, the holders of the Notes will have the right to require the Issuer
to make an offer to repurchase each holder’s Notes at a price equal to 101% (in the case of a change of control) or 100% (in the
case of an asset sale) of their principal amount, plus accrued and unpaid interest.
The Issuer may redeem all or a part of the Notes at any time prior
to July 1, 2026 at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus a make-whole premium and
accrued and unpaid interest, if any, to, but not including, the redemption date. In addition, beginning on July 1, 2026, the Issuer may
redeem all or a part of the Notes at a redemption price equal to 103.438% of the principal amount redeemed. The redemption price decreases
to 101.719% and 100.000% of the principal amount redeemed on or after July 1, 2027 and July 1, 2028, respectively. In addition, at any
time prior to July 1, 2026, the Issuer may redeem up to 40% of the Notes with an amount not to exceed the proceeds of certain equity offerings
at a redemption price equal to 106.875% of the principal amount thereof, plus accrued and unpaid interest.
The Notes contain covenants limiting, among other things, Parent Guarantor’s
and its restricted subsidiaries’ ability to incur additional indebtedness or issue certain preferred shares, pay dividends, redeem
stock or make other distributions, make certain investments, sell or transfer certain assets, create liens, consolidate, merge, sell or
otherwise dispose of all or substantially all of the Parent Guarantor’s assets, enter into certain transactions with affiliates,
and designate subsidiaries as unrestricted subsidiaries. These covenants are subject to a number of important exceptions and qualifications.
The Notes also contain customary events of default, the occurrence of which could result in the principal of and accrued interest on the
Notes to become or be declared due and payable.
Amendment No. 9 to the Credit Agreement
On June 4, 2024, certain subsidiaries of Gates entered into Amendment
No. 9 (“Amendment No. 9”) to the credit agreement dated as of July 3, 2014 (as amended by Amendment No. 1 dated as of April
7, 2017, as amended by Amendment No. 2 dated as of November 22, 2017, as amended by Amendment No. 3 dated as of January 24, 2018, as amended
by Amendment No. 4 dated as of February 24, 2021, as amended by Amendment No. 5 dated as of November 18, 2021, as amended by Amendment
No. 6 dated as of November 16, 2022, as amended by Amendment No. 7 dated as of March 1, 2023 and as amended by Amendment No. 8 dated as
of October 10, 2023, the “Credit Agreement”, and as further amended by Amendment No. 9, the “Amended Credit Agreement”),
among the Issuer, as borrower (the “Borrower”), the Parent Guarantor, certain subsidiaries of Parent Guarantor as guarantors,
UBS AG Cayman Islands Branch as administrative agent, UBS AG, Stamford Branch as collateral agent and L/C issuer, the lenders from time
to time party thereto and the other parties from time to time party thereto. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Amendment No. 9 or the Amended Credit Agreement, as applicable.
Amendment No. 9 amended the Credit Agreement, to, among other things,
(i) refinance and replace the existing $250.0 million of revolving credit commitments and upsized the revolving credit commitments by
an additional $250.0 million (the “Revolving Credit Facility”), (ii) refinance and replace the outstanding initial B-3 dollar
term loans (the “Initial B-3 Dollar Term Loans”) with a new class of $1,300.0 million of dollar denominated term loans (the
“Initial B-5 Dollar Term Loans”), (iii) amend the definition of “Applicable Rate” with respect to the initial
B-4 dollar term loans (the “Initial B-4 Dollar Term Loans”) to be the same as the Initial B-5 Dollar Term Loans and (iv) make
certain other amendments to the Credit Agreement. In connection with the additional revolving credit commitments under the Revolving Credit
Facility, the Second Amended and Restated Credit Agreement, dated as of July 3, 2014 (as amended and restated on January, 24, 2018, as
amended and restated on November 18, 2021 and as amended by Amendment No. 1, dated March 1, 2023), among Omaha Holdings LLC, Gates Global
LLC, Gates Industrial Canada Ltd., the lenders and issuing banks party thereto, Citibank, N.A., as administrative agent and collateral
agent, and the other agents listed therein, was terminated, including all commitments thereunder and security interests and guarantees
in connection therewith. In addition, the Amended Credit Agreement also provides the Issuer with the option to raise incremental credit
facilities in an aggregate of up to the greater of $750 million and 100% Adjusted EBITDA, subject to additional increases upon satisfaction
of certain first lien net leverage-based tests.
The proceeds of the Initial B-5 Dollar Term Loans
were applied to (i) refinance and replace the entire amount of the Initial B-3 Dollar Term Loans, (ii) to redeem a portion of
the 2026 Notes and (iii) to pay costs, fees and expenses in connection with the foregoing.
The Initial B-4 Dollar Term Loans and Initial
B-5 Dollar Term Loans bear interest at the Borrower’s option at either Term SOFR plus 2.25% per annum (subject to a 0.50% per annum
Term SOFR floor) or at the base rate plus 1.25% per annum (subject to a 1.50% per annum base rate floor).
The Revolving Credit Facility bears interest at
the Borrower’s option at either Term SOFR plus 2.25% per annum (subject to a 0.00% per annum Term SOFR floor) or at the base rate
plus 1.25% per annum. The applicable margin for the Revolving Credit Facility borrowings will be subject to two 25 basis point step downs
determined in accordance with Parent Guarantor achieving certain consolidated first lien net leverage levels.
The Initial B-5 Dollar Term Loans require scheduled
quarterly amortization payments of 1% per annum based on the initial aggregate principal amount of the Initial B-5 Dollar Term Loans and
matures in June 2031. The Initial B-5 Dollar Term Loans require a prepayment premium in connection with the repayment of such Initial
B-5 Dollar Term Loans in connection with certain repricing transactions occurring within six months following the closing of Amendment
No. 9.
The Revolving Credit Facility maturity
date was extended to the date that is the earliest of (x) June 4, 2029 and (y) April 1, 2029, if greater than $500 million in aggregate
principal amount of the Notes are outstanding on such date. The obligations under the Amended Credit Agreement will be unconditionally
and irrevocably guaranteed by the Parent Guarantor, the direct parent of the Issuer, and, subject to certain exceptions, each of the Parent
Guarantor’s existing and future material domestic wholly owned subsidiaries (collectively, the “U.S. Guarantors”) and,
subject to certain exceptions, will be collateralized by first priority or equivalent security interests in (x) all the capital stock
of, or other equity interests in, the Issuer and each of the Parent Guarantor’s material direct or indirect wholly owned restricted
domestic subsidiaries and direct wholly owned first-tier restricted foreign subsidiaries (limited to 65% of the voting equity interests
therein) and (y) certain tangible and intangible assets of the Issuer, the Parent Guarantor and those of the U.S. Guarantors.
The Parent Guarantor and its restricted subsidiaries
will also be required to maintain a maximum first lien net leverage ratio for the benefit of the lenders under the Revolving Credit Facility,
not exceeding 4.50 to 1.00 if borrowings under the Revolving Credit Facility exceed 30% of the issued and outstanding loans and commitments,
tested as of the last day of any fiscal quarter.
Each of the foregoing descriptions of each of
the Indenture, the Notes and Amendment No. 9 do not purport to be complete and are qualified in their entirety by reference to the
full text of each of such documents, which are filed as Exhibits 4.1, 4.2 and 4.3, respectively, to this Current Report on Form 8-K
and are 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 set forth in Item 1.01 of this
Current Report on Form 8-K is incorporated by reference in this Item 2.03.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit No. |
|
Description |
|
|
|
4.1 |
|
Indenture, dated as of June 4, 2024, by and among Gates Corporation, the guarantors named on the signature pages thereto and U.S. Bank Trust Company, National Association, as trustee. |
|
|
|
4.2 |
|
Form of 6.875% Senior Note due 2029 (included in Exhibit 4.1). |
|
|
|
4.3 |
|
Amendment
No. 9, dated June 4, 2024, to Credit Agreement, dated as of July 3, 2014, among Omaha Holdings LLC, Gates Industrial
Holdco Limited, Omaha Acquisition Inc., Gates Global LLC, Gates Corporation, each of the guarantors party thereto, UBS AG Cayman
Islands Branch, as administrative agent, UBS AG, Stamford Branch, as collateral agent and L/C issuer, lenders party thereto and JPMorgan
Chase Bank, N.A., as fronting lender. |
|
|
|
104 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
|
GATES INDUSTRIAL CORPORATION PLC |
|
|
|
|
By: |
/s/ L. Brooks Mallard |
|
|
Name: |
L. Brooks Mallard |
|
|
Title: |
Chief Financial Officer |
Date: June 4, 2024
Exhibit 4.1
INDENTURE
Dated as of June 4, 2024
Among
GATES CORPORATION, as the Issuer,
the Guarantors from time to time party hereto
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
$500,000,000 6.875% SENIOR NOTES DUE 2029
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
and Incorporation by Reference |
|
|
|
Section 1.01. |
Definitions |
1 |
Section 1.02. |
Other Definitions |
48 |
Section 1.03. |
Rules of Construction |
49 |
Section 1.04. |
Acts of Holders |
50 |
Section 1.05. |
Timing of Payment |
51 |
Section 1.06. |
Limited Condition Transactions |
51 |
Section 1.07. |
Certain Compliance Calculations |
52 |
|
|
|
ARTICLE 2
The Notes |
|
|
|
Section 2.01. |
Form and Dating; Terms |
53 |
Section 2.02. |
Execution and Authentication |
54 |
Section 2.03. |
Registrars, Transfer Agents and Paying Agents |
55 |
Section 2.04. |
Paying Agent to Hold Money in Trust |
55 |
Section 2.05. |
Holder Lists |
55 |
Section 2.06. |
Transfer and Exchange |
56 |
Section 2.07. |
Replacement Notes |
66 |
Section 2.08. |
Outstanding Notes |
66 |
Section 2.09. |
Treasury Notes |
66 |
Section 2.10. |
Temporary Notes |
67 |
Section 2.11. |
Cancellation |
67 |
Section 2.12. |
Defaulted Interest |
67 |
Section 2.13. |
CUSIP Numbers; ISINs |
68 |
Section 2.14. |
Additional Amounts |
68 |
|
|
|
ARTICLE 3
Redemption |
|
|
|
Section 3.01. |
Notices to Trustee |
69 |
Section 3.02. |
Selection of Notes to Be Redeemed or Purchased |
69 |
Section 3.03. |
Notice of Redemption or Purchase |
70 |
Section 3.04. |
Effect of Notice of Redemption |
71 |
Section 3.05. |
Deposit of Redemption Price |
71 |
Section 3.06. |
Notes Redeemed in Part |
71 |
Section 3.07. |
Optional Redemption |
71 |
Section 3.08. |
Offers to Repurchase by Application of Excess Proceeds |
73 |
Section 3.09. |
Mandatory Redemption |
75 |
|
|
|
ARTICLE 4
Covenants |
|
|
|
Section 4.01. |
Payment of Notes |
75 |
Section 4.02. |
Maintenance of Office or Agency |
75 |
Section 4.03. |
Reports and Other Information |
76 |
Section 4.04. |
Compliance Certificate |
78 |
Section 4.05. |
Taxes |
78 |
Section 4.06. |
Stay, Extension and Usury Laws |
78 |
Page
Section 4.07. |
Limitation on Restricted Payments |
78 |
Section 4.08. |
Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
88 |
Section 4.09. |
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock |
90 |
Section 4.10. |
Asset Sales |
98 |
Section 4.11. |
Transactions with Affiliates |
102 |
Section 4.12. |
Liens |
106 |
Section 4.13. |
Company Existence |
106 |
Section 4.14. |
Offer to Repurchase upon Change of Control Triggering Event |
106 |
Section 4.15. |
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries |
108 |
Section 4.16. |
Suspension of Covenants |
109 |
|
|
|
ARTICLE 5
Successors |
|
|
|
Section 5.01. |
Merger, Consolidation or Sale of All or Substantially All Assets |
110 |
Section 5.02. |
Successor Person Substituted |
112 |
|
|
|
ARTICLE 6
Defaults
and Remedies |
|
|
|
Section 6.01. |
Events of Default |
112 |
Section 6.02. |
Acceleration |
114 |
Section 6.03. |
Other Remedies |
115 |
Section 6.04. |
Waiver of Past Defaults |
116 |
Section 6.05. |
Control by Majority |
116 |
Section 6.06. |
Limitation on Suits |
116 |
Section 6.07. |
Right of Holders to Sue for Payment |
116 |
Section 6.08. |
Collection Suit by Trustee |
116 |
Section 6.09. |
Restoration of Rights and Remedies |
117 |
Section 6.10. |
Rights and Remedies Cumulative |
117 |
Section 6.11. |
Delay or Omission Not Waiver |
117 |
Section 6.12. |
Trustee May File Proofs of Claim |
117 |
Section 6.13. |
Priorities |
117 |
Section 6.14. |
Undertaking for Costs |
118 |
|
|
|
ARTICLE 7
Trustee
and Agents |
|
|
|
Section 7.01. |
Duties of Trustee |
118 |
Section 7.02. |
Rights of Trustee |
119 |
Section 7.03. |
Individual Rights of Trustee |
120 |
Section 7.04. |
Trustee’s Disclaimer |
120 |
Section 7.05. |
Notice of Defaults |
121 |
Section 7.06. |
Compensation and Indemnity |
121 |
Section 7.07. |
Replacement of Trustee |
122 |
Section 7.08. |
Successor Trustee by Merger, etc. |
122 |
Section 7.09. |
Eligibility; Disqualification |
122 |
|
|
|
ARTICLE 8
Legal Defeasance
and Covenant Defeasance |
|
|
|
Section 8.01. |
Option to Effect Legal Defeasance or Covenant Defeasance |
122 |
Section 8.02. |
Legal Defeasance and Discharge |
123 |
Section 8.03. |
Covenant Defeasance |
123 |
Page
Section 8.04. |
Conditions to Legal or Covenant Defeasance |
124 |
Section 8.05. |
Deposited Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions |
125 |
Section 8.06. |
Repayment to Issuer |
125 |
Section 8.07. |
Reinstatement |
125 |
|
|
|
ARTICLE 9
Amendment,
Supplement and Waiver |
|
|
|
Section 9.01. |
Without Consent of Holders |
125 |
Section 9.02. |
With Consent of Holders |
126 |
Section 9.03. |
Revocation and Effect of Consents |
127 |
Section 9.04. |
Notation on or Exchange of Notes |
128 |
Section 9.05. |
Trustee to Sign Amendments, etc. |
128 |
Section 9.06. |
Additional Voting Terms; Calculation of Principal Amount |
128 |
Section 9.07. |
No Impairment of Right of Holders to Receive Payment. |
128 |
|
|
|
ARTICLE 10
Guarantees |
|
|
|
Section 10.01. |
Guarantee |
129 |
Section 10.02. |
Limitation on Guarantor Liability |
130 |
Section 10.03. |
Execution and Delivery |
130 |
Section 10.04. |
Subrogation |
130 |
Section 10.05. |
Benefits Acknowledged |
130 |
Section 10.06. |
Release of Guarantees |
130 |
|
|
|
ARTICLE 11
Satisfaction
and Discharge |
|
|
|
Section 11.01. |
Satisfaction and Discharge |
132 |
Section 11.02. |
Application of Trust Money |
132 |
|
|
|
ARTICLE 12
Miscellaneous |
|
|
|
Section 12.01. |
Notices |
133 |
Section 12.02. |
Certificate and Opinion as to Conditions Precedent |
134 |
Section 12.03. |
Statements Required in Certificate or Opinion |
134 |
Section 12.04. |
Rules by Trustee and Agents |
134 |
Section 12.05. |
No Personal Liability of Directors, Managers, Officers, Members, Partners, Employees and Equityholders |
135 |
Section 12.06. |
Governing Law |
135 |
Section 12.07. |
Waiver of Jury Trial |
135 |
Section 12.08. |
Force Majeure |
135 |
Section 12.09. |
No Adverse Interpretation of Other Agreements |
135 |
Section 12.10. |
Successors |
135 |
Section 12.11. |
Severability |
135 |
Section 12.12. |
Counterpart Originals; Electronic Signatures |
135 |
Section 12.13. |
Table of Contents, Headings, etc. |
136 |
Section 12.14. |
Trust Indenture Act |
136 |
Section 12.15. |
USA Patriot Act |
136 |
EXHIBITS |
|
|
|
Exhibit A |
FORM OF NOTE |
Exhibit B |
FORM OF CERTIFICATE OF TRANSFER |
Exhibit C |
FORM OF CERTIFICATE OF EXCHANGE |
Exhibit D |
FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS |
INDENTURE, dated as of June 4, 2024, among
Gates Corporation, a Delaware corporation (the “Issuer”), the Guarantors (as defined herein) listed on the signature
pages hereto, and U.S. Bank Trust Company, National Association, as Trustee.
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the creation
of an issue of $500,000,000 aggregate principal amount of the Issuer’s 6.875% Senior Notes due 2029 (the “Initial Notes”);
and
WHEREAS, the Issuer and each of the Guarantors
has duly authorized the execution and delivery of this Indenture (as defined herein).
NOW, THEREFORE, the Issuer, each of the Guarantors
and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein).
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
“144A Global Note” means a
Global Note, substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of Notes sold in reliance on Rule 144A.
“Accounting Change” has the
meaning set forth in the definition of “GAAP.”
“Acquired Indebtedness” means,
with respect to any specified Person,
(a) Indebtedness
of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted
Subsidiary of such specified Person, including Indebtedness incurred or assumed in connection with, or in contemplation of, such other
Person merging, consolidating or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and
(b) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.
“Additional Notes” means any
additional Notes (other than the Initial Notes) issued from time to time under this Indenture in accordance with Section 2.01,
Section 2.02 and Section 4.09 hereof.
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such
specified Person. No person shall be an “Affiliate” of the Parent Guarantor or any Subsidiary solely because it is an unrelated
portfolio operating company of an Investor. For purposes of this definition, “control” (including, with correlative
meanings, the terms “controlling,” “controlled by” and “under common control with”),
as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction
of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Affiliated Holder” means,
at any time, any Holder that is a direct or indirect holding company of an Investor (including portfolio companies of the Investors notwithstanding
the exclusion in the definition of “Investors” but other than the Parent Guarantor, the Issuer or any of their Subsidiaries
and other than any Debt Fund Affiliate) to the extent that such Investor is an Affiliate of the Parent Guarantor at such time, or a Non-Debt
Fund Affiliate of an Investor at such time.
“Agent” means any Registrar,
Transfer Agent, Paying Agent or Authentication Agent.
“Applicable Asset Sale Percentage”
means (1) 100.0%, if the Consolidated First Lien Debt Ratio of the Parent Guarantor and its Restricted Subsidiaries shall be greater
than 1.50 to 1.00 for the Parent Guarantor’s most recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date of the applicable Asset Sale, (2) 50.0%, if the Consolidated First Lien Debt Ratio
of the Parent Guarantor and its Restricted Subsidiaries shall be less than or equal to 1.50 to 1.00 and greater than 1.00 to 1.00 for
the Parent Guarantor’s most recently ended four full fiscal quarters for which internal financial statements are available immediately
preceding the date of the applicable Asset Sale and (3) 0.0%, if the Consolidated First Lien Debt Ratio of the Parent Guarantor
and its Restricted Subsidiaries shall be less than or equal to 1.00 to 1.00 for the Parent Guarantor’s most recently ended four
full fiscal quarters for which internal financial statements are available immediately preceding the date of the applicable Asset Sale
and in each case calculated after giving pro forma effect to such Asset Sale and any related prepayment; provided, that, for the
avoidance of doubt, if, after giving effect to such Asset Sale and related prepayment, more than one of the preceding subclauses would
be applicable, the subclause with the lowest percentage shall apply.
“Applicable Indebtedness” has
the meaning set forth in the definition of “Weighted Average Life to Maturity.”
“Applicable Premium” means,
with respect to any Note on any Redemption Date, the greater of: (1) 1.0% of the principal amount of such Note, and (2) the
excess, if any, of (a) the present value at such Redemption Date of (i) the redemption price of such Note at July 1, 2026
(such redemption price being set forth in the table in Section 3.07(c) hereof), plus (ii) all required remaining
scheduled interest payments due on such Note through July 1, 2026 (excluding accrued but unpaid interest to, but excluding, the
Redemption Date), computed using a discount rate equal to the Applicable Treasury Rate as of such Redemption Date plus 50 basis
points, over (b) the then outstanding principal amount of such Note. The Issuer shall calculate, or cause the calculation of, the
Applicable Premium, and the Trustee and Agents shall have no duty to calculate, or verify the Issuer’s calculations of, the Applicable
Premium.
“Applicable Procedures” means,
with respect to any transfer or exchange of or for, redemption of, or notice with respect to beneficial interests in any Global Note
or the redemption or repurchase of any Global Note, the rules and procedures of DTC, the Depositary, Euroclear and/or Clearstream
that apply to such transfer, exchange, redemption or repurchase.
“Applicable Treasury Rate”
means, at the time of computation, the weekly average (for the most recently completed week for which such information is available as
of the date that is two Business Days prior to the date of the notice of redemption) of the yield to maturity of United States Treasury
securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H.15 with respect to each applicable
day during such week or, if such Statistical Release is no longer published, any publicly available source of similar market data) most
nearly equal to the period from the date of such redemption notice to July 1, 2026; provided, however, that if the period
from the date of such redemption notice to July 1, 2026 is not equal to the constant maturity of a United States Treasury security
for which a yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period
from the date of such redemption notice to July 1, 2026 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be used.
“Approved Commercial Bank”
means a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000.
“Asian JV” means Gates Unitta
Asia Company (organized under the laws of Japan), Gates Unitta Asia Trading Company Pte Ltd (organized under the laws of Singapore),
Gates Unitta India Company Private Limited (organized under the laws of India), Gates Unitta Korea Co., Ltd. (organized under the
laws of Korea), Gates Nitta Belt Company, LLC (organized under the laws of Delaware) and Gates Unitta (Thailand) Co., Ltd. (organized
under the laws of Thailand), or wholly-owned subsidiaries thereof and any successor entities of the foregoing.
“Asset Sale” means:
(a) the
sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions (including by way
of a Sale and Lease-Back Transaction), of property or assets of the Parent Guarantor or any of its Restricted Subsidiaries (each referred
to in this definition as a “disposition”); or
(b) the
issuance or sale of Equity Interests of any Restricted Subsidiary (other than Preferred Stock or Disqualified Stock of Restricted Subsidiaries
issued in compliance with, or in a manner not prohibited by, Section 4.09 hereof), whether in a single transaction or a series
of related transactions;
in each case, other than:
(i) (A) any
disposition of Cash Equivalents or Investment Grade Securities or obsolete, non-core, surplus, damaged, unnecessary, uneconomic, no longer
commercially desirable, unsuitable or worn out equipment, inventory or other property or any disposition of inventory, goods or other
assets held for sale or no longer used or useful, or economically practical to maintain in the conduct of the business of the Parent
Guarantor or any of its Restricted Subsidiaries and (B) write-off or write-down of any unrecoupable loans or advances;
(ii) (A) the
disposition of all or substantially all of the assets of the Parent Guarantor or any Restricted Subsidiary in a manner permitted pursuant
to or not prohibited by Section 5.01 or (B) any disposition that constitutes, or in the case of a Permitted Change of
Control, is made in connection with, a Change of Control or a Permitted Change of Control pursuant to this Indenture;
(iii) (A) any
Permitted Investment and the making of any Restricted Payment that is permitted to be made, and is made, under Section 4.07
hereof or (B) any disposition the proceeds of which are used to fund a Permitted Investment or the making of a Restricted Payment
that is permitted to be made, and is made, under Section 4.07 hereof;
(iv) any
disposition of property or assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of
related transactions with a fair market value not to exceed the greater of (A) $115.0 million and (B) 15.0% of LTM EBITDA;
(v) any
disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Parent Guarantor or by the Parent Guarantor
or a Restricted Subsidiary to a Restricted Subsidiary, including pursuant to any Intercompany License Agreement;
(vi) any
swap or exchange of like property for use in a Similar Business;
(vii) (A) the
lease, assignment, sublease, license, sub-license or cross-license of any real or personal property in the ordinary course of business
or consistent with industry practices or (B) any dispositions and/or terminations of leases, subleases, licenses or sub-licenses
(including the provision of software under an open source license), which (x) do not materially interfere with the business of the
Parent Guarantor and its Subsidiaries (taken as a whole) or (y) relate to closed facilities or the discontinuation of any product
or service line;
(viii) any
issuance, disposition or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (or a Restricted
Subsidiary which owns an Unrestricted Subsidiary so long as such Restricted Subsidiary owns no assets other than the Equity Interests
of such Unrestricted Subsidiary);
(ix) foreclosures,
condemnation, expropriation, forced dispositions, eminent domain or any similar action with respect to assets or the granting of Liens
not prohibited by this Indenture, and transfers of any property that have been subject to a casualty to the respective insurer of such
property as part of an insurance settlement or upon receipt of the net proceeds of such casualty event;
(x) dispositions
of (A) accounts receivable, or participations therein, or Securitization Assets (including any discount and/or forgiveness thereof
and sales to factors or similar third parties) or in connection with the collection or compromise thereof and (B) receivables, or
participations therein, or Securitization Assets and related assets (or the Equity Interests in a Subsidiary, all or substantially all
of the assets of which are receivables, or participations therein, or Securitization Assets and related assets) pursuant to or in connection
with any Qualified Securitization Facility;
(xi) any
financing transaction with respect to property built or acquired by the Parent Guarantor or any Restricted Subsidiary after the Issue
Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Indenture;
(xii) the
sale, discount or other disposition of inventory, accounts receivable, notes receivable, equipment or other assets in the ordinary course
of business or consistent with past practice or the conversion of accounts receivable to notes receivable;
(xiii) the
conveyance, sale, transfer, assignment, lease, sublease, licensing, sub-licensing or cross-licensing of intellectual property or other
general intangibles in the ordinary course of business or consistent with industry practices;
(xiv) any
surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary
course of business or consistent with industry practices;
(xv) the
unwinding or termination of any Hedging Obligations;
(xvi) sales,
transfers and other dispositions of Investments in joint ventures or non-Wholly Owned Subsidiaries to the extent required by, or made
pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding
arrangements;
(xvii) the
lapse, cancellation or abandonment of intellectual property rights, which in the reasonable good faith determination of the Parent Guarantor
are not material to the conduct of the business of the Parent Guarantor and its Restricted Subsidiaries taken as a whole, or are no longer
used or useful or economically practicable or commercially reasonable to maintain;
(xviii) the
granting of a Lien that is permitted under Section 4.12 hereof;
(xix) the
issuance of directors’ qualifying shares and shares issued to foreign nationals or other third parties as required by applicable
law;
(xx) Permitted
Intercompany Activities and related transactions;
(xxi) transfers
of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event; provided that any net Cash Equivalents
received by the Parent Guarantor or any of its Restricted Subsidiaries in respect of such Casualty Event shall be deemed to be Net Proceeds
of an Asset Sale, and such Net Proceeds shall be applied in accordance with Section 4.10 hereof;
(xxii) any
disposition to a Captive Insurance Subsidiary;
(xxiii) any
sale of property or assets, if the acquisition of such property or assets was financed with Excluded Contributions and the proceeds of
such sale are used to make a Restricted Payment pursuant to Section 4.07(b)(x)(b);
(xxiv) the
disposition of any assets (including Equity Interests) (i) acquired in a transaction after the Issue Date, which assets are not
used or useful in the core or principal business of the Parent Guarantor and its Restricted Subsidiaries or (ii) made in connection
with the approval of any applicable antitrust or other regulatory authority or otherwise necessary or advisable in the good faith determination
of the Parent Guarantor to consummate any acquisition;
(xxv) any
disposition of non-revenue producing assets to a Person who is providing services related to such assets, the provision of which have
been or are to be outsourced by the Parent Guarantor or any Restricted Subsidiary to such Person;
(xxvi) any
sale, transfer or other disposition to effect the formation of any Subsidiary that has been formed upon the consummation of a Division;
provided that any disposition or other allocation of assets (including any Equity Interests of such Subsidiary) in connection
therewith is otherwise not prohibited by this Indenture;
(xxvii) dispositions
of real estate assets and related assets in the ordinary course of business or consistent with past practice in connection with relocation
activities for employees, directors, officers, managers, members, partners, independent contractors or consultants of the Parent Guarantor,
any direct or indirect parent company or Subsidiary;
(xxviii) any
dispositions of assets in connection with the closing or sale of an office in the ordinary course of business of the Parent Guarantor
and its Subsidiaries, which consist of leasehold interests in the premises of such office, the equipment and fixtures located at such
premises and the books and records relating exclusively and directly to the operations of such office;
(xxix) the
sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
(xxx) dispositions
in connection with any Permitted Intercompany Activities and related transactions;
(xxxi) dispositions
pursuant to any Sale and Lease-Back Transactions or lease-leaseback transactions;
(xxxii) dispositions
of assets received by the Parent Guarantor or any Restricted Subsidiary upon the foreclosure on a Lien;
(xxxiii) nominal
issuances of Equity Interests of Foreign Subsidiaries in an aggregate amount not to exceed 2.00% of all issued and outstanding Equity
Interests of such Foreign Subsidiary on a fully diluted basis;
(xxxiv) sales
or dispositions of Equity Interests of any Foreign Subsidiary in order to qualify members of the governing body of such Subsidiary if
required by applicable law;
(xxxv) de
minimis amounts of equipment provided to employees;
(xxxvi) to
the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property (excluding
any boot thereon) for use in a Similar Business;
(xxxvii) dispositions
of any asset between or among the Parent Guarantor and/or Restricted Subsidiaries as a substantially concurrent interim Disposition in
connection with a Disposition otherwise permitted pursuant to clauses (i) through (xxxvi) above;
(xxxviii) any
disposition of property or assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of
related transactions with an aggregate fair market value per fiscal year not to exceed the greater of (A) $150.0 million and (B) 20.0%
of LTM EBITDA; provided that 100% of the unused amount of dispositions, issuances or sales permitted pursuant to this clause (xxxviii) in
any fiscal year may be carried forward to the succeeding fiscal year and utilized to make dispositions, issuances or sales pursuant to
this clause (xxxviii); and
(xxxix) any
other disposition of property or assets or any issuance or sale of Equity Interests of any Restricted Subsidiary so long as, after giving
pro forma effect to such transaction, the Consolidated Total Debt Ratio shall be no greater than 5.50 to 1.00 or the Consolidated Total
Debt Ratio is equal to or less than immediately prior to such disposition.
In the event that a transaction (or a portion
thereof) meets the criteria of a permitted Asset Sale and would also be a permitted Restricted Payment or Permitted Investment, the Issuer,
in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Sale and/or one or
more of the types of permitted Restricted Payments or Permitted Investments.
In the event that a transaction (or a portion
thereof) meets the criteria of more than one of the categories of permitted Asset Sale described in clauses (i) through (xxxix) above
or the Net Proceeds of which are being applied in accordance with Section 4.10 hereof, the Issuer, in its sole discretion,
may divide or classify, and may from time to time redivide and reclassify, such permitted Asset Sale (or any portion thereof) and will
only be required to include the amount and type of such permitted Asset Sale in one or more of the above clauses or to apply the Net
Proceeds of which in accordance with Section 4.10 hereof.
“Available RP Capacity Amount”
means (a) the amount of Restricted Payments that may be made at the time of determination pursuant to clause (B) of Section 4.07(a) hereof
and clauses (iv), (ix), (x) and (xi) of Section 4.07(b) hereof minus (b) the
sum of the amount of the Available RP Capacity Amount utilized by the Parent Guarantor or any Restricted Subsidiary to (i) make
Restricted Payments in reliance on clause (B) of Section 4.07(a) hereof and clauses (iv), (ix), (x) and
(xi)(A) of Section 4.07(b) hereof, (ii) incur Indebtedness pursuant to clause (xxix) of Section 4.09(b) hereof
and (iii) make Permitted Investments in reliance on clause (jj) of the definition thereof, plus (c) the aggregate principal
amount of Indebtedness prepaid prior to or substantially concurrently at such time, solely to the extent such Indebtedness was incurred
pursuant to clause (xxix) of Section 4.09(b) hereof (it being understood that the amount under this clause (c) shall
only be available for use pursuant to clause (xxix) of Section 4.09(b) hereof).
“Bank Products” means any facilities
or services related to cash management, including treasury, depository, overdraft, credit or debit card, purchase card, automatic clearinghouse
transfer transactions, controlled disbursements, foreign exchange facilities, stored value cards, merchant services, electronic funds
transfer and other cash management or similar arrangements.
“Bankruptcy Code” means Title
11, U.S. Code, as amended.
“Bankruptcy Law” means the
Bankruptcy Code or any similar federal, state or applicable non-U.S. law for the relief of debtors.
“Blackstone Funds” means, individually
or collectively, Blackstone Inc. and its Affiliates and any investment fund, partnership, co-investment vehicle and/or other similar
vehicles or accounts, in each case managed, advised or controlled by Blackstone Inc. or one or more of its Affiliates, or any successors
of any of the foregoing.
“Board” with respect to a Person
means the board of directors, board of managers, sole member or managing member or other governing body of such Person, or if such Person
is owned or managed by a single entity or has a general partner, the board of directors, board of managers, sole member or managing member
or other governing body of such entity or general partner, or in each case, any duly authorized committee thereof, and the term “director”
means a member of the applicable Board.
“Borrowing Base” means, as
of the date of determination, an amount equal to the sum, without duplication of (1) 85.0% of the aggregate book value of the Parent
Guarantor’s and its Restricted Subsidiaries’ accounts receivable and (2) 85.0% of the net orderly liquidation value
of the Parent Guarantor’s and its Restricted Subsidiaries’ inventories. Book value shall be determined in accordance with
GAAP and shall be calculated using amounts reflected on the balance sheet as of the Parent Guarantor’s most recently ended fiscal
quarter for which internal financial statements are available at the time (it being understood that the accounts receivable and inventories
of an acquired or to be acquired business may be included if such acquisition has been completed or is to be completed substantially
concurrently with the date of determination).
“Business Day” means each day
which is not a Legal Holiday.
“Business
Expansion” means (a) each facility which is either a new facility, branch, store or office or an expansion, relocation,
remodeling or substantial modernization of an existing facility, branch, store or office owned by the Parent Guarantor or a Restricted
Subsidiary and (b) each creation or expansion into new markets (in one or a series of related transactions) of a business unit to
the extent such business unit commences operations or each expansion (in one or a series of related transactions) of business into a
new market.
“Capital Stock” means:
(a) in
the case of a corporation, corporate stock or shares in the capital of such corporation;
(b) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(c) in
the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(d) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
“Capitalized Software Expenditures”
means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted
Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements
that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person
and its Restricted Subsidiaries.
“Captive
Insurance Subsidiary” means (i) any Subsidiary of the Parent Guarantor operating for the purpose of (a) insuring
the businesses, operations or properties owned or operated by the Parent Guarantor or any of its Subsidiaries, including their future,
present or former employees, directors, officers, managers, members, partners, independent contractors or consultants, and related benefits
and/or (b) conducting any activities or business incidental thereto (it being understood and agreed that activities which are relevant
or appropriate to qualify as an insurance company for U.S. federal or state tax purposes or other national, regional or local tax purposes
shall be considered “activities or business incidental thereto”) or (ii) any Subsidiary of any such insurance subsidiary
operating for the same purpose described in clause (i) above.
“Cash Equivalents” means:
(a) United
States dollars;
(b) (i) Canadian
dollars, (ii) pounds sterling, yen, euros or any national currency of any participating member state of the EMU or (iii) cash
in such other currencies held by the Parent Guarantor or any Restricted Subsidiary from time to time in the ordinary course of business
or consistent with past practice or industry norm;
(c) securities
issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof
the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24
months or less from the date of acquisition;
(d) certificates
of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, demand deposits,
bankers’ acceptances with maturities not exceeding 24 months and overnight bank deposits, in each case with any domestic or foreign
commercial bank having capital and surplus of not less than $100 million (or the foreign currency equivalent as of the date of determination);
(e) repurchase
obligations for underlying securities of the types described in clauses (c) and (d) above and clauses (g) and (h) below
entered into with any financial institution or recognized securities dealer meeting the qualifications specified in clause (d) above;
(f) commercial
paper and variable or fixed rate notes rated at least P-2 by Moody’s, at least A-2 by S&P or at least F-2 by Fitch (or, if
at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency)
and in each case maturing within 24 months after the date of creation thereof;
(g) marketable
short-term money market and similar funds having a rating of at least P-2, A-2 or F-2 from Moody’s, S&P or Fitch, respectively
(or, if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating
Agency);
(h) readily
marketable direct obligations issued by, or unconditionally guaranteed by, any state, commonwealth or territory of the United States
or any political subdivision, public instrumentality or taxing authority thereof with maturities of 24 months or less from the date of
acquisition;
(i) readily
marketable direct obligations issued by, or unconditionally guaranteed by, any foreign government or any political subdivision, public
instrumentality or taxing authority thereof, in each case (other than in the case of such obligations issued or guaranteed by any participating
member state of the EMU) having an Investment Grade Rating from Moody’s, S&P or Fitch (or, if at any time none of Moody’s,
S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency) with maturities of 24 months or less
from the date of acquisition;
(j) Investments
with average maturities of 24 months or less from the date of acquisition in money market funds rated A (or the equivalent thereof) or
better by S&P, A2 (or the equivalent thereof) or better by Moody’s or F-2 (or the equivalent thereof) or better by Fitch (or,
if at any time none of Moody’s, S&P or Fitch shall be rating such obligations, an equivalent rating from another Rating Agency);
(k) securities
with maturities of 24 months or less from the date of acquisition backed by standby letters of credit issued by any financial institution
or recognized securities dealer meeting the qualifications specified in clause (d) above;
(l) Indebtedness
or Preferred Stock issued by Persons with a rating of “A” or higher from S&P, “A2” or higher from Moody’s
or “F-2” or higher from Fitch with maturities of 24 months or less from the date of acquisition; and
(m) investment
funds investing at least 90% of their assets in currencies, instruments or securities of the types described in clauses (a) through
(l) above.
In the case of Investments by any Foreign Subsidiary
that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash Equivalents shall also include
(i) investments of the type and maturity described in clauses (a) through (h) and clauses (j), (k), (l) and (m) above
of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent
ratings from comparable foreign rating agencies and (ii) other short-term investments utilized by Foreign Subsidiaries that are
Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing
investments in clauses (a) through (m) and in this paragraph.
In addition, in the case of Investments by any
Captive Insurance Subsidiary, Cash Equivalents shall also include (a) such Investments with average maturities of 12 months or less
from the date of acquisition in issuers rated BBB- (or the equivalent thereof) or better by S&P or Baa3 (or the equivalent thereof)
or better by Moody’s, in each case at the time of such Investment and (b) any Investment with a maturity of more than 12 months
that would otherwise constitute Cash Equivalents of the kind described in any of clauses (a) through (m) of this definition
or clause (a) above, if the maturity of such Investment was 12 months or less; provided that the effective maturity of such
Investment does not exceed 15 years.
Notwithstanding the foregoing, Cash Equivalents
shall include amounts denominated in currencies other than those set forth in clauses (a) and (b) above, provided that
such amounts are converted into any currency listed in clauses (a) and (b) as promptly as practicable and in any event within
ten Business Days following the receipt of such amounts.
For the avoidance of doubt, any items identified
as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes under this Indenture regardless of the
treatment of such items under GAAP.
“Casualty Event” means any
event that gives rise to the receipt by the Parent Guarantor or any Restricted Subsidiary of any insurance proceeds or condemnation awards
in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment,
fixed assets or real property.
“CFC”
means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change of Control” means the
occurrence of any of the following after the Issue Date:
(a) the
sale, lease, transfer, conveyance or other disposition in one or a series of related transactions (other than by merger, consolidation
or amalgamation), of all or substantially all of the assets of the Parent Guarantor and its Subsidiaries, taken as a whole, to any Person
other than any Permitted Holder, the Issuer or any Guarantor; provided that such sale, lease, transfer, conveyance or other disposition
shall not constitute a Change of Control unless any Person (other than any Permitted Holder or a Holding Company) or Persons (other than
any Permitted Holders or a Holding Company) that are together a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act as in effect on the Issue Date), including any such group acting for the purpose of acquiring, holding or disposing
of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Issue Date), becomes the beneficial
owner (within the meaning of Rule 13d-3 under the Exchange Act as in effect on the Issue Date), directly or indirectly, of more
than 50.0%, on a fully diluted basis, of the total voting power of the Voting Stock of the transferee Person in such sale, lease, transfer,
conveyance or other disposition of assets, as the case may be; or
(b) the
Parent Guarantor becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy,
vote, written notice or otherwise) the acquisition by (A) any Person (other than any Permitted Holder) or (B) Persons (other
than any Permitted Holders) that are together a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act as in effect on the Issue Date), including any such group acting for the purpose of acquiring, holding or disposing
of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Issue Date), in a single transaction
or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act as in effect on the Issue Date) of more than 50.0%, on a fully diluted
basis, of the total voting power of the Voting Stock of the Parent Guarantor directly or indirectly through any of its direct or indirect
parent holding companies, unless the Permitted Holders otherwise have the right (pursuant to contract, proxy or otherwise), directly
or indirectly, to designate, nominate or appoint at least 50% of directors (or similar position) on the Board of the Parent Guarantor
or any parent entity,
in each case, other than in connection with any transaction or series
of transactions in which the Parent Guarantor shall become a Subsidiary of a Holding Company.
Notwithstanding the preceding or any provision
of Rule 13d-3 or 13d-5 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock (x) to
be acquired by such Person or group pursuant to an equity 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 Voting
Stock in connection with the transactions contemplated by such agreement or (y) solely as a result of veto or approval rights in
any joint venture agreement, shareholder agreement, investor rights agreement or other similar agreement, (ii) if any group (other
than a Permitted Holder) includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Parent Guarantor owned,
directly or indirectly, by any Permitted Holders that are part of such group shall not be treated as being beneficially owned by such
group or any other member of such group for purposes of determining whether a Change of Control has occurred, (iii) a Person or
group (other than Permitted Holders) will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership
of Voting Stock or other securities of such other Person’s direct or indirect parent holding companies (or related contractual
rights) unless it owns more than 50.0% of the total voting power of the Voting Stock of such Person’s direct or indirect parent
holding companies and (iv) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting
of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not
cause a party to be a beneficial owner.
“Change of Control Triggering Event”
means a Change of Control unless the Consolidated Total Debt Ratio is not greater than 5.0 to 1.00 after giving pro forma effect to such
Change of Control; provided that, notwithstanding anything herein to the contrary, when calculating the Consolidated Total Debt
Ratio for purposes of this definition, the Issuer shall be entitled at its option to make such calculations as it would if making calculations
of baskets or ratios in connection with a Limited Condition Transaction.
“Clearstream” means Clearstream
Banking, a société anonyme as currently in effect or any successor securities clearing agency.
“Code” means the United States
Internal Revenue Code of 1986, as amended.
“COLI Loan” means those certain
loans borrowed from time to time by Gates Corporation against group life insurance policies from Mass Mutual (or any successor thereto)
and the associated group life insurance policies.
“consolidated, ” unless otherwise
specifically indicated, when used with respect to any Person refers to such Person consolidated with its Restricted Subsidiaries.
“Consolidated Depreciation and Amortization
Expense” means with respect to any Person for any period, the total amount of depreciation and amortization expense and capitalized
fees, including, without limitation, the amortization of capitalized fees or costs related to any Qualified Securitization Facility of
such Person and the amortization of media development costs, intangible assets, content databases, internal labor costs, deferred financing
fees or costs, debt issuance costs, commissions, fees and expenses and Capitalized Software Expenditures of such Person and its Restricted
Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated First Lien Debt Ratio”
means, as of any date of determination, the ratio of (1) (a) Consolidated First Lien Net Debt minus Cash Equivalents
that would be stated on the balance sheet of the Parent Guarantor and its Restricted Subsidiaries as of such date of determination, in
each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions set forth in the
definition of Fixed Charge Coverage Ratio and as determined in good faith by the Issuer plus (b) in connection with the incurrence
of any Indebtedness pursuant to Section 4.09(a) or Section 4.09(b) hereof or the creation or incurrence
of any Lien pursuant to the definition of “Permitted Liens,” the Reserved Indebtedness Amount relating to Consolidated First
Lien Net Debt as of such date of determination, in each case with such pro forma adjustments as are appropriate and consistent with the
pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio and as determined in good faith by the Issuer
to (2) LTM EBITDA.
“Consolidated First Lien Net Debt”
means Consolidated Total Indebtedness of the Parent Guarantor and its Restricted Subsidiaries (other than any subordinated Indebtedness)
minus the sum of (i) the portion of Indebtedness of the Parent Guarantor and its Restricted Subsidiaries included in Consolidated
Total Indebtedness that is not secured, in whole or in part, by any Lien and (ii) the portion of Indebtedness of the Parent Guarantor
and its Restricted Subsidiaries included in Consolidated Total Indebtedness that is expressly subordinated in right of payment to, or
that is secured on a junior lien basis to the Liens securing, the Obligations under the Senior Secured Credit Facilities.
“Consolidated Interest Expense”
means, with respect to any Person for any period, without duplication, the sum of:
(a) consolidated
cash interest expense of such Person and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness to
the extent included in the calculation of Consolidated Total Indebtedness, to the extent such expense was deducted (and not added back)
in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness
at less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances,
(iii) [reserved], (iv) the interest component of Financing Lease Obligations, and (v) net payments, if any made (less
net payments, if any, received), pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (o) annual
agency or similar fees paid to the administrative agents, collateral agents and other agents under any Credit Facilities, (p) any
additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (q) costs
associated with obtaining Hedging Obligations, (r) any expense resulting from the discounting of any Indebtedness in connection
with the application of recapitalization accounting or, if applicable, purchase or acquisition accounting in connection with any acquisition
or other transaction, (s) penalties and interest relating to taxes, (t) any “additional interest” or “liquidated
damages” with respect to other securities for failure to timely comply with registration rights obligations, (u) amortization
or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted
liabilities and any other amounts of non-cash interest, (v) any expensing of bridge, commitment and other financing fees and any
other fees related to any acquisition or other transaction, (w) Securitization Fees, commissions, discounts, yield, make-whole premium
and other fees and charges (including any interest expense) incurred in connection with any Qualified Securitization Facility, (x) any
accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, penalty or cost, (y) interest
expense attributable to a parent entity resulting from push-down accounting, (z) any lease, rental or other expense in connection
with a Non-Financing Lease Obligation and (aa) the interest component associated with COLI Loans); plus
(b) consolidated
cash interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(c) interest
income of such Person and its Restricted Subsidiaries for such period.
For purposes of this definition, interest on a
Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest
implicit in such Financing Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in accordance with
GAAP).
“Consolidated Net Income” means,
with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis, and otherwise determined in accordance with GAAP; provided that, without duplication:
(a) any
extraordinary, exceptional, one-time, infrequent, non-operating, unusual or non-recurring gains, losses or expenses (including all fees
and expenses relating thereto) (including any extraordinary, exceptional, one-time, infrequent, non-operating, unusual or non-recurring
operating expenses directly attributable to the implementation of cost savings initiatives and any accruals or reserves in respect of
any extraordinary, exceptional, infrequent, unusual or non-recurring items, charges or expenses (including relating to any multi-year
strategic initiatives)), costs associated with preparations for, and implementation of, compliance with the requirements of the Sarbanes-Oxley
Act of 2002 and other Public Company Costs, Permitted Change of Control Costs, restructuring and duplicative running costs, restructuring
charges or reserves (including any restructuring charge related to any Permitted Tax Restructuring), earn-out payments or other consideration
paid or payable in connection with an acquisition to the extent recorded as cash compensation expense, relocation costs, start-up or
initial costs for any project or new production line, division or new line of business, integration and facilities opening costs, facility
consolidation and closing costs, severance costs and expenses, one-time charges (including compensation charges), payments made pursuant
to the terms of change in control agreements that the Parent Guarantor or a Subsidiary or a parent entity of the Parent Guarantor had
entered into with any future, present or former employees, directors, officers, managers, members, partners, independent contractors
or consultants of the Parent Guarantor, a Subsidiary or a parent entity of the Parent Guarantor, pre-opening, opening, consolidation,
discontinuation, re-configuration, integration, ramp-up costs, moving and closing costs and expenses for locations, facilities and stores,
losses, costs or cost inefficiencies related to facility or property disruptions or shutdowns, signing, retention and completion bonuses,
recruiting costs, costs incurred in connection with any strategic initiatives, transition costs, litigation and arbitration fees (whether
or not recurring), charges, fees and expenses (including settlements), expenses in connection with one-time rate changes, costs incurred
in connection with acquisitions, investments and dispositions, travel and out-of-pocket costs, professional fees for legal, accounting
and other services, human resources costs (including relocation bonuses), litigation and arbitration costs (whether or not recurring),
charges, fees and expenses (including related judgments and settlements), management transition costs, advertising costs, losses associated
with temporary decreases in business volume and expenses related to maintaining underutilized personnel, non-recurring product and intellectual
property development, other business optimization expenses or reserves (including costs and expenses relating to business optimization
programs and new systems design and costs or reserves associated with improvements to IT and accounting functions, retention charges
(including charges or expenses in respect of incentive plans), system establishment costs and implementation costs) and costs, charges
or expenses attributable to the implementation of cost-savings initiatives or operating expense reductions, product margin synergies
and other synergies and similar initiatives and other expenses relating to the realization of synergies, and curtailments or modifications
to pension and post-retirement employee benefit plans shall be excluded;
(b) at
the election of the Issuer with respect to any quarterly period, the cumulative after-tax effect of a change in accounting principles
and changes as a result of the adoption or modification of accounting policies (including, but not limited to, the impact of Accounting
Standards Update 2016-12 Revenue from Contracts with Customers (Topic 606) or similar revenue recognition policies promulgated or that
become effective) during any such period shall be excluded;
(c) any
net after-tax effect of gains or losses on (i) disposal, abandonment or discontinuance of disposed, abandoned or discontinued operations,
as applicable, and any accretion or accrual of discontinued liabilities on the disposal of such disposed, abandoned and discontinued
operation and (ii) facilities or distribution centers that have been closed during such period, shall be excluded;
(d) any
net after-tax effect of gains or losses (less all fees, expenses and charges relating thereto) attributable to (i) asset dispositions
(including dispositions of books of business, client lists, or related goodwill in connection with the departure of related employees
or producers or bulk subscriber contract sales) or abandonments or the sale or other disposition of any Capital Stock of any Person or
(ii) returned surplus assets of any pension plan, in each case other than in the ordinary course of business shall be excluded;
(e) the
Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the
equity method of accounting shall be excluded; provided that Consolidated Net Income of such Person shall be increased by the
amount of dividends or distributions or other payments (other than Excluded Contributions pursuant to clause (b) of the definition
of “Excluded Contributions”) that are actually paid in Cash Equivalents (or to the extent converted, or having the ability
to be converted, into Cash Equivalents), or that could, in the reasonable determination of the Parent Guarantor, have been distributed,
to such Person or a Restricted Subsidiary thereof in respect of such period;
(f) solely
for the purpose of determining the amount available for Restricted Payments under Section 4.07(a)(B)(1) hereof, the Net
Income for such period of any Restricted Subsidiary (other than the Issuer or any Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination
permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted
Subsidiary or its stockholders (other than restrictions in the Notes or this Indenture), unless such restriction with respect to the
payment of dividends or similar distributions has been legally waived or released (or such Person reasonably believes such restriction
could be waived or released and is using commercially reasonable efforts to pursue such waiver or release) or such restriction is not
prohibited pursuant to Section 4.08; provided that Consolidated Net Income of such Person will be increased by the amount
of dividends or other distributions or other payments actually paid in Cash Equivalents (or to the extent converted, or having the ability
to be converted, into Cash Equivalents) to such Person or a Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein;
(g) effects
of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in such Person’s
consolidated financial statements pursuant to GAAP (including in the inventory (including any impact of changes to inventory valuation
policy methods, including changes in capitalization of variances), property and equipment, software, loans and leases, goodwill, intangible
assets, in-process research and development, deferred revenue and debt line items thereof) resulting from the application of recapitalization
accounting or purchase or acquisition accounting, as the case may be, in relation to any Permitted Change of Control, consummated acquisition,
joint venture investment or other transaction or the amortization or write-off or write-down of any amounts thereof, net of taxes, shall
be excluded;
(h) any
after-tax effect of income (loss) from the extinguishment or conversion of (i) Indebtedness, (ii) Hedging Obligations or (iii) other
derivative instruments shall be excluded;
(i) any
impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to goodwill,
intangible assets, long-lived assets, investments in debt and equity securities and investments recorded using the equity method or as
a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP
shall be excluded;
(j) any
equity-based or non-cash compensation or similar charge or expense or reduction of revenue including any such charge, expense or amount
arising from grants of stock appreciation or similar rights, stock options, restricted stock, profits interests or other rights or equity-
or equity-based incentive programs (“equity incentives”), any other management or employee benefit plan or agreement,
pension plan or other long-term or post-employment plan, any one-time cash charges associated with the equity incentives or other long-term
incentive compensation plans (including under deferred compensation arrangements of the Parent Guarantor or any of its direct or indirect
parent entities or subsidiaries), roll-over, acceleration, or payout of Equity Interests by future, present or former employees, directors,
officers, managers, members, partners, independent contractors or consultants or business partners of the Parent Guarantor or any of
its direct or indirect parent entities or subsidiaries, and any cash awards granted to future, present or former employees, directors,
officers, managers, members, partners, independent contractors, consultants or business partners of the Parent Guarantor and its Subsidiaries
or any of its direct or indirect parent entities in replacement for forfeited equity awards, shall be excluded;
(k) any
fees, costs, expenses, premiums or charges incurred during such period, or any amortization thereof for such period, in connection with
any acquisition, recapitalization, Investment, Asset Sale, disposition, option buyout, incurrence or repayment of Indebtedness (including
such fees, expenses, premiums or charges related to (A) the offering and issuance of the Notes and other securities and the syndication
and incurrence of any Credit Facilities and (B) the rating of the Notes, other securities or any Credit Facilities by Moody’s,
S&P, Fitch or any other Rating Agency), issuance of Equity Interests of the Parent Guarantor or its direct or indirect parent entities,
refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of the Notes
and other securities and any Credit Facilities) or other transaction and including, in each case, any such transaction consummated on
or prior to the Issue Date and any such transaction undertaken but not completed, any Public Company Costs and any charges or non-recurring
merger costs incurred during such period as a result of any such transaction, in each case whether or not successful or consummated (including,
for the avoidance of doubt the effects of expensing all transaction related expenses in accordance with Financial Accounting Standards
Board Accounting Standards Codification Topic No. 805, Business Combinations), shall be excluded;
(l) accruals
and reserves that are established or adjusted in connection with the closing of any acquisition or other Investment or transaction that
are so required to be established or adjusted as a result of such acquisition or transaction in accordance with GAAP or changes as a
result of modifications of accounting policies shall be excluded;
(m) any
expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as such Person has made
a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party
and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net
of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period), shall be excluded;
(n) any
noncash compensation expense resulting from the application of Accounting Standards Codification Topic No. 718, Compensation
— Stock Compensation or any other applicable accounting principle relating to the expensing of equity-related compensation,
shall be excluded;
(o) any
net pension or post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including
amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at
the date of initial application of Statement of Financial Accounting Standards No. 87, 106 and 112; and any other items of a similar
nature, shall be excluded;
(p) income
or expense related to changes in the fair value of contingent liabilities recorded in connection with any acquisition or other Investment
shall be excluded;
(q) all
discounts, commissions, fees and other charges (including interest expense) associated with any Qualified Securitization Facility shall
be excluded;
(r) the
effects of adjustments to accruals and reserves during a period relating to any change in the methodology of calculating reserves for
returns, rebates and other chargebacks (including government program rebates) shall be excluded;
(s) any
accruals or obligations accrued related to workers’ compensation programs to the extent that expenses deducted in the calculation
of net income exceed the net amounts paid in cash related to workers’ compensation programs in that period shall be excluded;
(t) the
amount of any cash tax benefits related to the tax amortization of intangible assets in such period shall be included;
(u) the
following items shall be excluded:
(i) any
realized or unrealized net gain or loss (after any offset) resulting in such period from Hedging Obligations and the application of Accounting
Standards Codification Topic No. 815, Derivatives and Hedging or any other comparable applicable accounting standard;
(ii) any
realized or unrealized net gain or loss (after any offset) resulting in such period from currency translation or transaction gains or
losses including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations
for currency exchange risk and those resulting from intercompany Indebtedness) and any other foreign currency translation or transactions
gains and losses to the extent such gains or losses are non-cash items;
(iii) any
adjustments resulting for the application of Accounting Standards Codification Topic No. 460, Guarantees, or any comparable
accounting standard or regulation;
(iv) at
the election of the Issuer with respect to any quarterly period, effects of adjustments to accruals and reserves during a prior period
relating to any change in the methodology of calculating reserves for returns, rebates and other chargebacks;
(v) earn-out,
non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price or valuation adjustments; and
(vi) the
impact of capitalized, accrued or accredited or pay-in-kind interest, and
(v) if
such Person is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period
or any portion thereof, the amount of distributions actually made to any direct or indirect parent company of such Person in respect
of such period in accordance with clause (xx) of Section 4.07(b) hereof shall be included in calculating Consolidated
Net Income as though such amounts had been paid as taxes directly by such Person for such period.
In addition, to the extent not already included
in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing,
Consolidated Net Income shall include the amount of proceeds received or due from business interruption insurance and reimbursements
of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment
or any sale, conveyance, transfer or other disposition of assets permitted under this Indenture.
Notwithstanding the foregoing, for the purpose
of Section 4.07 hereof only (other than Section 4.07(a)(B)(4) hereof), there shall be excluded from Consolidated
Net Income any income arising from any sale or other disposition of Restricted Investments made by the Parent Guarantor and its Restricted
Subsidiaries, any repurchases and redemptions of Restricted Investments from the Parent Guarantor and its Restricted Subsidiaries, any
repayments of loans and advances which constitute Restricted Investments by the Parent Guarantor or any of its Restricted Subsidiaries,
any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only
to the extent such amounts increase the amount of Restricted Payments permitted under Section 4.07 hereof pursuant to Section 4.07(a)(B)(4) hereof.
“Consolidated
Secured Debt Ratio” means, as of any date of determination, the ratio of (1) (a) Consolidated Secured Net Debt minus
Cash Equivalents that would be stated on the balance sheet of the Parent Guarantor and its Restricted Subsidiaries as of such date
of determination, in each case with such pro forma adjustments as are appropriate and consistent with the pro forma adjustment provisions
set forth in the definition of Fixed Charge Coverage Ratio and as determined in good faith by the Issuer plus (b) in connection
with the incurrence of any Indebtedness pursuant to Section 4.09(a) or Section 4.09(b) hereof or the creation
or incurrence of any Lien pursuant to the definition of “Permitted Liens,” the Reserved Indebtedness Amount relating
to Consolidated Secured Net Debt as of such date of determination, in each case with such pro forma adjustments as are appropriate and
consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio and as determined in good
faith by the Parent Guarantor to (2) LTM EBITDA.
“Consolidated Secured Net Debt”
means Consolidated Total Indebtedness of the Parent Guarantor and its Restricted Subsidiaries (other than any subordinated Indebtedness)
minus the sum of (i) the portion of Indebtedness of the Parent Guarantor and its Restricted Subsidiaries included in Consolidated
Total Indebtedness that is not secured, in whole or in part, by any Liens and (ii) the portion of Indebtedness of the Parent Guarantor
and its Restricted Subsidiaries included in Consolidated Total Indebtedness that is subordinated in right of payment to the Obligations
(whether or not secured).
“Consolidated Total Debt Ratio”
means, as of any date of determination, the ratio of (1) (a) Consolidated Total Indebtedness of the Parent Guarantor and its
Restricted Subsidiaries as of such date of determination minus Cash Equivalents that would be stated on the balance sheet of the
Parent Guarantor and its Restricted Subsidiaries as of such date of determination, in each case with such pro forma adjustments as are
appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio and as
determined in good faith by the Parent Guarantor plus (b) in connection with the incurrence of any Indebtedness pursuant
to Section 4.09(a) or Section 4.09(b) hereof, the Reserved Indebtedness Amount of the Parent Guarantor
and its Restricted Subsidiaries as of such date of determination, in each case with such pro forma adjustments as are appropriate and
consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio and as determined in good
faith by the Issuer to (2) LTM EBITDA.
“Consolidated Total Indebtedness”
means, as of any date of determination, an amount equal to the aggregate amount of all outstanding Senior Indebtedness of the Parent
Guarantor and its Restricted Subsidiaries (other than any subordinated Indebtedness) on a consolidated basis consisting of Senior Indebtedness
for borrowed money, Obligations in respect of Financing Lease Obligations and debt obligations evidenced by bonds, notes, debentures,
promissory notes and similar instruments, as determined in accordance with GAAP (including discounts for any original issue discount
in connection with such Indebtedness but excluding for the avoidance of doubt all undrawn amounts under revolving credit facilities and
letters of credit, and all obligations relating to Qualified Securitization Facilities and Non-Financing Lease Obligations and excluding
the effects of any discounting of Indebtedness resulting from the application of repurchase or purchase or acquisition accounting in
connection with any acquisition or other transaction); provided, that Consolidated Total Indebtedness shall not include Indebtedness
in respect of (A) any letter of credit, except to the extent of unreimbursed amounts under standby letters of credit, provided
that any unreimbursed amounts under commercial letters of credit shall not be counted as Consolidated Total Indebtedness until five
Business Days after such amount is drawn and (B) Hedging Obligations. The U.S. Dollar Equivalent principal amount of any Indebtedness
denominated in a foreign currency will reflect the currency translation effects, determined in accordance with GAAP, of Hedging Obligations
for currency exchange risks with respect to the applicable currency in effect on the date of determination of the U.S. Dollar Equivalent
principal amount of such Indebtedness.
“Contingent Obligations” means,
with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute
Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent:
(a) to
purchase any such primary obligation or any property constituting direct or indirect security therefor;
(b) to
advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(c) to
purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Controlled Investment Affiliate”
means, as to any Person, any other Person, other than any Investor, which directly or indirectly is in control of, is controlled by,
or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making
direct or indirect equity or debt investments in the Parent Guarantor and/or other companies.
“Corporate Trust Office” means
the office of the Trustee at which any time its corporate trust business related to this Indenture shall be administered, which office
at the date hereof is CityPlace I, 185 Asylum Street, 27th Floor, Hartford, Connecticut 06103, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee
(or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
“Credit Facilities” means,
with respect to the Parent Guarantor or any of its Restricted Subsidiaries, one or more debt facilities, including the Senior Secured
Credit Facilities, or other financing arrangements (including, without limitation, commercial paper facilities, agreements or indentures)
providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages,
guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof, in whole or in part, and any indentures, agreements, credit facilities or commercial
paper facilities that replace, refund, supplement, extend, amend, restate or refinance any part of the loans, notes, other credit facilities
or commitments thereunder, including any such replacement, refunding, supplemental, extending, amended, restating or refinancing facility,
arrangement, agreement or indenture that increases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof
(provided that such increase in borrowings or issuances is permitted under Section 4.09 hereof) or adds Restricted Subsidiaries
as additional borrowers or guarantors thereunder and whether by the same or any other agent, trustee, lender or group of lenders or other
holders or investors.
“Cumulative Retained Asset Sale Proceeds”
means the cumulative portion (since the Issue Date) of the net proceeds of Asset Sales or any disposition that does not constitute an
“Asset Sale” not applied or not required to be applied pursuant to Section 4.10(b) hereof and the Net Proceeds
of any disposition not otherwise prohibited by Section 4.10 hereof, including those Net Proceeds not required to be applied
pursuant to Section 4.10(b) hereof due to the Applicable Asset Sale Percentage being less than 100%.
“Custodian” means the Trustee,
as custodian with respect to the Notes, each in global form, or any successor entity thereto.
“Customary Bridge Loans” means
customary bridge loans with a maturity date of no longer than one year; provided that, subject to customary conditions, such bridge
loans would either be converted into or required to be exchanged for permanent financing in the form of a loan, note, security or other
Indebtedness (a) the Weighted Average Life to Maturity of which is not shorter than the Weighted Average Life to Maturity of the
Notes and (b) the final maturity date of which is not earlier than the maturity date of the Notes, in each case, on the date of
the incurrence of such bridge loans.
“Debt Fund Affiliate” means
(i) any fund or client managed by, or under common management with Blackstone Alternative Credit Advisors, Blackstone Real Estate
Special Situations Advisors L.L.C. and Blackstone Tactical Opportunities Fund L.P., (ii) any fund or client managed by an adviser
within the credit focused division of Blackstone Inc. or Blackstone ISG-I Advisors L.L.C., (iii) The Blackstone Strategic Opportunity
Funds (including masters, feeders, on-shore, offshore and parallel funds), (iv) funds and accounts managed by Blackstone Alternative
Solutions, L.L.C. or its Affiliates and (v) any other Affiliate of the Permitted Holders or the Parent Guarantor that is a bona
fide debt fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans,
bonds and similar extensions of credit in the ordinary course.
“Default” means any event that
is, or with the passage of time or the giving of notice or both would be, an Event of Default; provided that any Default that
results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed
to be cured if such previous Default is cured or waived prior to becoming an Event of Default.
“Definitive Note” means a certificated
Note registered in the name of the Holder thereof and issued in accordance with Section 2.06(d) hereof, substantially
in the form of Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have the “Schedule
of Exchanges of Interests in the Global Note” attached thereto.
“Depositary” means, with respect
to the Notes issuable or issued in whole or in part in global form, any Person specified in Section 2.03 hereof as the Depositary
with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
“Derivative Instrument” means,
with respect to a Person, any contract, instrument or other right to receive payment or delivery of cash or other assets to which such
Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in
the Notes (other than a Regulated Bank or Screened Affiliate) is a party (whether or not requiring further performance by such Person),
the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the
Notes and/or the creditworthiness of the Issuer and/or any one or more of the Guarantors (the “Performance References”).
“Designated Non-cash Consideration”
means the fair market value of non-cash consideration received by the Parent Guarantor or a Restricted Subsidiary in connection with
an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the
basis of such valuation, less the amount of Cash Equivalents received in connection with a subsequent sale, redemption, conversion or
repurchase of or collection or payment on such Designated Non-cash Consideration. A particular item of Designated Non-Cash Consideration
will no longer be considered to be outstanding when and to the extent it has been paid, redeemed or otherwise retired or sold or otherwise
disposed of in exchange for consideration in the form of Cash Equivalents in compliance with Section 4.10 hereof.
“Designated Preferred Stock”
means Preferred Stock of the Parent Guarantor or any direct or indirect parent company thereof (in each case other than Disqualified
Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the
Parent Guarantor or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate,
on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 4.07(a)(B) hereof.
“Disqualified Stock” means,
with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible
or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely
for Capital Stock of such Person or any direct or indirect parent entity thereof that would not otherwise constitute Disqualified Stock,
and other than solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain) pursuant to a sinking
fund obligation or otherwise, or is redeemable or exchangeable at the option of the holder thereof (other than solely for Capital Stock
of such Person or as a result of a change of control, asset sale, casualty, condemnation or eminent domain), in whole or in part, in
each case prior to the date that is 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding;
provided that if such Capital Stock is issued pursuant to any plan for the benefit of future, present or former employees, directors,
officers, managers, members, partners, independent contractors or consultants of the Parent Guarantor or its Subsidiaries or by any such
plan to such future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants,
such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Parent Guarantor
or its Subsidiaries or a direct or indirect parent entity of the Parent Guarantor in order to satisfy applicable statutory or regulatory
obligations or as a result of such employee’s termination, death or disability or otherwise in accordance with 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; provided further that any Capital Stock held by any future, current or former employee, director,
officer, member, partner, manager, consultant or independent contractor (or their respective Controlled Investment Affiliates or Immediate
Family Members) of the Parent Guarantor, any of its Subsidiaries, any of its direct or indirect parent companies or any other entity
in which the Parent Guarantor or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate”
by the Board of the Parent Guarantor or any direct or indirect parent of the Parent Guarantor (or the compensation committee thereof),
in each case pursuant to any equity option or equity appreciation rights plan, any management, director and/or employee equity ownership
or incentive plan, equity subscription plan or subscription agreement, employment termination agreement or any other employment agreement
or equity holders’ agreement shall not constitute Disqualified Stock solely because it may be required to be repurchased by the
Parent Guarantor or its Subsidiaries or any direct or indirect parent of the Parent Guarantor or in order to satisfy applicable statutory
or regulatory obligations; and provided further, however, that any class of Capital Stock of such Person that by its terms authorizes
such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to
be Disqualified Stock.
“Division” means the division
of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant
to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the
Dividing Person may or may not survive.
“Domestic Subsidiary” means,
with respect to any Person, any Subsidiary that is organized under the laws of the United States, any state thereof or the District of
Columbia.
“EBITDA” means, with respect
to any Person for any period, the Consolidated Net Income of such Person for such period:
(a) increased
(without duplication) by the following, in each case (other than with respect to clauses (vi), (viii), (xi) and (xiii) and
the applicable pro forma adjustments in clause (xv)) to the extent deducted (and not added back) in determining Consolidated Net Income
for such period:
(i) (A) provision
for taxes based on income, profits or capital gains, including, without limitation, federal, state, municipal, foreign, franchise and
similar taxes and sales taxes (such as the Delaware franchise tax, the Pennsylvania capital tax, Texas margin tax and provincial capital
taxes paid in Canada) and withholding taxes (including any future taxes or other levies which replace or are intended to be in lieu of
such taxes and any penalties and interest related to such taxes or arising from tax examinations), (B) if such Person is treated
as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period or any portion thereof,
the amount of distributions actually made to any direct or indirect parent company of such Person in respect of such period in accordance
with clause (xx) under Section 4.07(b) hereof and (C) the net tax expense associated with any adjustments made
pursuant to clauses (a) through (v) of the definition of “Consolidated Net Income”; plus
(ii) Fixed
Charges of such Person for such period (including (w) non-cash rent expense, (x) net losses or any obligations on Hedging Obligations
or other derivative instruments, (y) bank fees, letter of credit fees and other financing fees and (z) costs of surety bonds
in connection with financing activities, plus amounts excluded from Consolidated Interest Expense as set forth in clauses (a)(o) through
(z) in the definition thereof); plus
(iii) Consolidated
Depreciation and Amortization Expense of such Person for such period; plus
(iv) the
amount of any restructuring charges or reserves, equity-based or non-cash compensation charges or expenses, including any such charges
or expenses arising from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, retention charges
(including charges or expenses in respect of incentive plans), start-up or initial costs for any project or new production line, division
or new line of business or other business optimization expenses or reserves including, without limitation, costs or reserves associated
with improvements to IT and accounting functions, integration and facilities opening costs or any one-time costs incurred in connection
with acquisitions and investments and costs related to the closure and/or consolidation of facilities; plus
(v) any
other non-cash charges, expenses or losses, including non-cash losses on the sale of assets, impairments and any write-offs or write-downs
reducing Consolidated Net Income for such period and any non-cash expense relating to the vesting of warrants (provided that if
any such non-cash charges represent an accrual or reserve for potential cash items in any future period, (A) the Issuer may elect
not to add back such non-cash charge in the current period and (B) to the extent the Issuer elects to add back such non-cash charge,
the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent), and excluding amortization
of a prepaid cash item that was paid in a prior period; plus
(vi) the
amount of any non-controlling interest or minority interest expense or any expense or deduction attributable to non-controlling or minority
equity interests of third parties in any non-Wholly Owned Subsidiary; plus
(vii) the
amount of (x) Board fees, management, monitoring, consulting, transaction, advisory and other fees (including termination fees)
and indemnities, costs and expenses paid or accrued in such period to the Permitted Holders or otherwise to any member of the Board of
the Parent Guarantor, any Subsidiary of the Parent Guarantor or any direct or indirect parent of the Parent Guarantor, any Permitted
Holder or any Affiliate of a Permitted Holder, (y) payments made to option holders of the Parent Guarantor or any of its direct
or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its
direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders
at the time of, and entitled to share in, such distribution, including any cash consideration for any repurchase of equity, in each case
to the extent permitted in this Indenture and (z) any fees and other compensation paid to the members of the Board of the Parent
Guarantor or any of its parent entities; plus
(viii) the
amount of pro forma adjustments, including pro forma “run rate” cost savings (including sourcing), operating expense reductions,
operating improvements (including the entry into new or revised contracts and arrangements) and cost synergies, product margin and other
synergies (collectively, “Run Rate Benefits”) related to mergers, amalgamations and other business combinations, acquisitions,
investments, dispositions, divestitures, restructurings, operating improvements and expense reductions, cost savings initiatives, new
or revised contracts, discontinued operations, operational changes, Business Expansions, any Permitted Tax Restructuring and other similar
transactions or initiatives (including the modification and renegotiation of contracts and other arrangements and the entry into new
contracts and arrangements) and including EBITDA pursuant to contracted pricing (at the highest contracted rate) (any such operating
improvement, restructuring, cost savings initiative, contract or other transaction, action or initiative, a “Run Rate Initiative”)
that are reasonably identifiable and projected by the Issuer in good faith to result from or relating to actions that have been taken
or initiated, or have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated (in
each case, including from any steps or actions taken or initiated in whole or in part prior to the Issue Date or the applicable consummation
date of such Run Rate Initiative) or are expected to be taken or initiated (in the good faith determination of the Issuer) within 36
months after any such Run Rate Initiative is consummated or entered into, net of the amount of actual benefits realized during such period
from such actions, in each case, calculated on a pro forma basis as though such cost savings, operating improvements and expense reductions,
product margin and other synergies and EBITDA improvements based on contracted pricing (at the highest contracted rate) and similar arrangements
had been realized on the first day of such period for which EBITDA is being determined and as if such cost savings, operating improvements
and expense reductions, product margin and other synergies and EBITDA were realized on the first day of the applicable period for the
entirety of such period; provided that no cost savings, operating improvements and expense reductions, product margin and other
synergies and EBITDA shall be added pursuant to this clause (viii) to the extent duplicative of any expenses or charges otherwise
added to EBITDA, whether through a pro forma adjustment or otherwise, for such period; plus
(ix) (A) the
amount of any fee, loss, charge, expense, cost, accrual or reserve of any kind incurred or accrued in connection with sales of receivables
and related assets in connection with any Qualified Securitization Facility and (B) Securitization Fees and the amount of loss on
sale of receivables and related assets to the Securitization Subsidiary in connection with a Securitization Facility; plus
(x) any
costs or expense incurred by the Parent Guarantor or a Restricted Subsidiary or a direct or indirect parent entity of the Parent Guarantor
to the extent paid by the Parent Guarantor or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or
any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement;
plus
(xi) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not representing EBITDA or Consolidated Net Income in any
period to the extent non-cash gains relating to such income were deducted in the calculation of EBITDA pursuant to clause (b) below
for any previous period and not added back; plus
(xii) any
net losses, charges, expenses, costs or other payments (including all fees, expenses or charges related thereto) (i) from disposed,
abandoned or discontinued operations, (ii) in respect of facilities no longer used or useful in the conduct of the business of the
Parent Guarantor or its Restricted Subsidiaries, abandoned, closed, disposed or discontinued operations and any losses on disposal of
abandoned, closed or discontinued operations and (iii) attributable to business dispositions or asset dispositions (other than in
the ordinary course of business) as determined in good faith by the Parent Guarantor; plus
(xiii) at
the option of the Issuer with respect to any quarterly period, an amount equal to the net change in deferred revenue at the end of such
period from the deferred revenue at the end of the previous period; plus
(xiv) (A) compensation
expense attributable to positive investment income with respect to funded deferred compensation account balances and (B) any non-cash
long-term incentive payments relating to compensation arrangements or non-cash accruals related to long-term incentive plans; plus
(xv) adjustments,
exclusions and add-backs (but not including, for the avoidance of doubt, any deductions) (x) used in connection with or reflected
in the calculation of “Adjusted EBITDA” as set forth in footnote (1) of “Summary — Summary Historical Consolidated
Financial Information” contained in the Offering Memorandum to the extent such adjustments continue to be applicable during the
period in which EBITDA is being calculated and other adjustments, exclusions and add-backs of a similar nature to the foregoing, in each
case applied in good faith by the Issuer and (y) identified or set forth in any quality of earnings report or analysis prepared
by independent registered public accountants of recognized national or international standing or any other accounting or valuation firm
in connection with any acquisition, merger, consolidation, Investment or other transaction not prohibited by this Indenture; plus
(xvi) the
amount of any gains or losses arising from embedded derivatives in the customer contracts of the Parent Guarantor or a Restricted Subsidiary
and any gain or loss attributable to mark-to-market adjustments in the valuation of pension liabilities, including actuarial gain or
loss on pension and post-retirement plans, curtailments and settlements; plus
(xvii) charges,
expenses or losses incurred in connection with any Permitted Tax Restructuring; plus
(xviii) charges
relating to the sale of products in new locations, including start-up costs, initial testing and registration costs in new markets, the
cost of feasibility studies, travel costs for employees engaged in activities relating to any or all of the foregoing and the allocation
of general and administrative support in connection with any or all of the foregoing; plus
(xix) costs
related to the implementation of operational and reporting systems and technology initiatives and Public Company Costs; plus
(xx) 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, 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, employees’, consultants’, 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 and other executive costs, legal and other professional fees and listing fees;
(b) decreased
(without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(i) non-cash
gains (including non-cash gains on the sale of assets) increasing Consolidated Net Income of such Person for such period, excluding any
non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any
prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase EBITDA
in such prior period; plus
(ii) any
net income from disposed, abandoned, closed or discontinued operations or attributable to business dispositions or asset dispositions
(other than in the ordinary course of business) as determined in good faith by the Issuer; plus
(iii) the
reduction in compensation expense attributable to investment loss with respect to funded deferred compensation account balances; plus
(iv) claims
paid by the Parent Guarantor or any Captive Insurance Subsidiary and administrative expenses paid to any Captive Insurance Subsidiary;
and
(c) increased
or decreased (without duplication) by, as applicable, any non-cash adjustments resulting from the application of FASB Interpretation
No. 45 Guarantees, or any comparable applicable accounting standard.
“EMU” means the economic and
monetary union as contemplated in the Treaty on European Union.
“Equityholding
Vehicle” means any direct or indirect parent entity of the Parent Guarantor and any equityholder thereof through which
future, present or former employees, directors, officers, managers, members or partners of the Parent Guarantor or any of its Subsidiaries
or direct or indirect parent entities hold Capital Stock of the Parent Guarantor or such parent entity.
“equity incentives” has the
meaning set forth in the definition of “Consolidated Net Income.”
“Equity Interests” means Capital
Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock.
“Equity Offering” means any
public or private sale or issuance of Capital Stock or Preferred Stock (excluding Disqualified Stock) of the Parent Guarantor or any
of its direct or indirect parent companies, other than:
(a) public
offerings with respect to the Parent Guarantor’s or any direct or indirect parent company’s common equity registered on Form S-8;
(b) issuances
to any Subsidiary of the Parent Guarantor; and
(c) any
such public or private sale or issuance that constitutes an Excluded Contribution.
“euro” means the single currency
of participating member states of the EMU.
“Euroclear” means Euroclear
Bank S.A./N.V., as operator of the Euroclear system, or any successor securities clearing agency.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder (and with respect to the definitions
of “Change of Control” and “Permitted Holders” only, as in effect on the Issue Date).
“Excluded Contribution” means
Net Cash Proceeds, marketable securities or Qualified Proceeds received by the Parent Guarantor after the Original Issue Date from:
(a) contributions
to its common equity capital;
(b) dividends,
distributions, fees and other payments from any Unrestricted Subsidiaries or joint ventures or Investments in entities that are not Restricted
Subsidiaries; and
(c) the
sale (other than to a Subsidiary of the Parent Guarantor or to any management equity plan or stock option plan or any other management
or employee benefit plan or agreement of the Parent Guarantor) of Capital Stock (other than Disqualified Stock and Designated Preferred
Stock) of the Parent Guarantor or any direct or indirect parent entity to the extent contributed as common equity capital to the Parent
Guarantor,
in each case designated as Excluded Contributions pursuant to an Officer’s
Certificate, which are (or were) excluded from the calculation set forth in Section 4.07(a)(B) hereof.
“fair market value” means,
with respect to any asset or liability, the fair market value of such asset or liability as determined by the Parent Guarantor in good
faith.
“Financing
Lease Obligation” means an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance
of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in
accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital
lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance
with GAAP; provided that any obligations of the Parent Guarantor or its Restricted Subsidiaries either existing on the Issue Date
or created prior to any re-characterization described below (i) that were not included on the consolidated balance sheet of the
Parent Guarantor as financing or capital lease obligations and (ii) that are subsequently re-characterized as financing or capital
lease obligations or indebtedness due to a change in accounting treatment or otherwise, shall for all purposes under this Indenture
(including, without limitation, the calculation of Consolidated Net Income and EBITDA) not be treated as financing or capital lease obligations,
Financing Lease Obligations or Indebtedness. Notwithstanding the foregoing, at any time on or following the Issue Date, the Parent Guarantor
may elect that “GAAP” as used in this definition shall mean U.S. GAAP as in effect on January 1, 2015 or (if the Issuer’s
financial statements are at such time prepared in accordance with IFRS) IFRS as in effect on January 1, 2018. For the avoidance
of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of
Indebtedness.
“Fixed Charge Coverage Ratio”
means, with respect to any Person for any period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person
for such period. In the event that such Person or any Restricted Subsidiary incurs, assumes, guarantees, redeems, repays, retires or
extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit, working capital or letter of credit facility)
or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to or substantially concurrently with the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the “Fixed Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, repayment, retirement or extinguishment
of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock (in each case, including a pro forma application
of the net proceeds therefrom), as if the same had occurred at the beginning of the applicable four-quarter period, subject, for the
avoidance of doubt, to the paragraphs contained in Section 1.07 hereof; provided, however, that the pro forma
calculation of Fixed Charges for purposes of Section 4.09(a) hereof (and for the purposes of other provisions of this
Indenture that refer to Section 4.09(a) hereof) shall not give effect to any Indebtedness being incurred on such date
(or on such other subsequent date which would otherwise require pro forma effect to be given to such incurrence) pursuant to Section 4.09(b) hereof
(other than Secured Indebtedness incurred pursuant to Section 4.09(b)(xiv)(B) hereof).
For purposes of making the computation referred
to above, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations (as determined
in accordance with GAAP), operational changes, Business Expansions, new or revised contracts and other transactions that have been made
by or involving the Parent Guarantor or any of its Restricted Subsidiaries during the four-quarter reference period or subsequent to
such reference period and on or prior to or substantially concurrently with the Fixed Charge Coverage Ratio Calculation Date shall be
calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations,
discontinued operations, operational changes, Business Expansions, new or revised contracts and other transactions (and the change in
any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter
reference period; provided that at the election of the Parent Guarantor, such pro forma adjustments shall not be required to be
determined to the extent the aggregate consideration paid in connection with such acquisition or other transaction was less than the
greater of (i) $75.0 million and (ii) 10.0% of LTM EBITDA. If since the beginning of such period any Person that subsequently
became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Parent Guarantor or any of its Restricted
Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation,
discontinued operation, operational change, Business Expansion or other transaction that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment,
acquisition, disposition, merger, amalgamation, consolidation, discontinued operation, operational change, Business Expansion, new or
revised contract or other transaction had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro
forma effect is to be given to an Investment, acquisition, disposition, merger, amalgamation, consolidation, discontinued operation,
operational change, Business Expansion, new or revised contract or other transaction, the pro forma calculations shall be made
in good faith by a responsible financial or accounting officer of the Parent Guarantor or its Restricted Subsidiaries (and may include,
for the avoidance of doubt, cost savings, operating expense reductions and product margin and other synergies resulting from such Investment,
acquisition, disposition, merger, amalgamation, consolidation, discontinued operation, operational change, Business Expansion, new or
revised contract or other transaction which is being given pro forma effect) calculated in accordance with and permitted by clause
(a)(viii) or (a)(xv) of the definition of “EBITDA.” If any Indebtedness bears a floating or formula rate of interest
and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed
Charge Coverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations
applicable to such Indebtedness). Interest on a Financing Lease Obligation shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the Parent Guarantor to be the rate of interest implicit in such Financing Lease
Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during
the applicable period except as set forth in the first paragraph of this definition. Interest on 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 deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Parent
Guarantor may designate.
“Fixed Charge Coverage Ratio Calculation
Date” has the meaning set forth in the definition of “Fixed Charge Coverage Ratio.”
“Fixed Charges” means, with
respect to any Person for any period, the sum of, without duplication:
(a) Consolidated
Interest Expense of such Person for such period (including for purposes of clause (b) of the definition of “EBITDA”
only, any non-cash interest expense);
(b) all
cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock during such
period; and
(c) all
cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during such
period.
“Foreign Subsidiary” means
(i) any Subsidiary of the Parent Guarantor that is not a Domestic Subsidiary and (ii) any direct or indirect Domestic Subsidiary
that is a direct or indirect Subsidiary of a direct or indirect Foreign Subsidiary that is a CFC.
“FSHCO Subsidiary” means any
Subsidiary substantially all of the assets of which consist of Equity Interests and/or Indebtedness of one or more Foreign Subsidiaries
that are CFCs, Domestic Subsidiaries of a direct or indirect Foreign Subsidiary that is a CFC, or Subsidiaries that are FSHCO Subsidiaries,
and any other assets incidental thereto.
“GAAP” means, at the election
of the Parent Guarantor, (1) the accounting standards and interpretations adopted by the International Accounting Standard Board,
as in effect from time to time (“IFRS”) if the Parent Guarantor’s financial statements are at such time prepared
in accordance with IFRS or (2) generally accepted accounting principles in the United States of America, as in effect from time
to time (“U.S. GAAP”) if the Parent Guarantor’s financial statements are at such time prepared in accordance
with U.S. GAAP, it being understood that, for purposes of this Indenture, (a) all references to codified accounting standards specifically
named in this Indenture shall be deemed to include any successor, replacement, amendment or updated accounting standard under IFRS or
U.S. GAAP, as applicable, (b) neither IFRS nor U.S. GAAP shall include the policies, rules and regulations of the SEC, the
American Institute of Certified Public Accountants, the International Accounting Standards Board or any other applicable regulatory or
governing body applicable only to public companies, (c) any calculation or determination in this Indenture that requires the application
of GAAP across multiple quarters need not be calculated or determined using the same accounting standard for each constituent quarter,
(d) all calculations or determinations in this Indenture shall be made without giving effect to any election under FASB Accounting
Standards Topic 825, Financial Instruments, or any successor thereto or comparable accounting principle, to value any Indebtedness
or other liabilities at “fair value” (as defined therein) and (e) in the event that the Parent Guarantor makes an election
referred to in the definition of “Financing Lease Obligations,” the accounting for operating leases and financing or capital
leases under U.S. GAAP as in effect on January 1, 2015 (including, without limitation, Accounting Standards Codification 840) or
IFRS as in effect on January 1, 2018 (such that the impact of IFRS 16 (Leases) shall be disregarded) shall apply for the purpose
of determining compliance with the provisions of this Indenture, including the definition of Financing Lease Obligation. For the avoidance
of doubt, solely making an election (without any other action) referred to in this definition will not (1) be treated as an incurrence
of Indebtedness or (2) have the effect of rendering invalid any payment, Investment or other action made prior to the date
of such election pursuant to Section 4.07 hereof or any incurrence of Indebtedness incurred prior to the date of such election
pursuant to Section 4.09 hereof (or any other action conditioned on the Parent Guarantor and the Restricted Subsidiaries having
been able to incur $1.00 of additional Indebtedness) if such payment, Investment, incurrence or other action was valid under this
Indenture on the date made, incurred or taken, as the case may be.
If there occurs a change in IFRS or U.S. GAAP,
as the case may be, and such change would cause a change in the method of calculation of any term or measure used in this Indenture (an
“Accounting Change”), then the Parent Guarantor may elect that such term or measure shall be calculated as if such
Accounting Change had not occurred.
“Global Note Legend” means
the legend set forth in Section 2.06(h)(ii) hereof, which is required to be placed on all Global Notes issued under this
Indenture.
“Global Notes” means, individually
and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibit A
hereto, issued in accordance with Section 2.01, Section 2.06(a) or Section 2.06(c) hereof.
“guarantee” means a guarantee
(other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner
(including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
“Guarantee” means the guarantee
by the Parent Guarantor or any Subsidiary Guarantor of the Issuer’s Obligations under this Indenture and the Notes.
“Hedging Obligations” means,
with respect to any Person, the obligations of such Person under (1) any rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps
or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar agreements or transactions
or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction
is governed by or subject to any master agreement, and (2) any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities
under any Master Agreement.
“Holder” means the Person in
whose name a Note is registered on the Registrar’s books.
“Holding Company” means any
Person so long as the Parent Guarantor is a direct or indirect Subsidiary of such Person, and at the time the Parent Guarantor became
a Subsidiary of such Person, no Person and no group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act as in effect on the Issue Date), including any such group acting for the purpose of acquiring, holding or disposing
of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act as in effect on the Issue Date) (other than any
Permitted Holder), shall have beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act as in effect on the
Issue Date), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of such Person.
“IFRS” has the meaning set
forth in the definition of “GAAP.”
“Immediate Family Members”
means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent,
grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law
(including adoptive relationships), the estates of such individual and such other individuals above and any trust, partnership or other
bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation, trust
or fund that is controlled by any of the foregoing individuals or any donor-advised foundation, trust or fund of which any such individual
is the donor.
“Indebtedness” means, with
respect to any Person, without duplication:
(a) any
indebtedness of such Person, whether or not contingent:
(i) representing
the principal in respect of borrowed money;
(ii) representing
the principal in respect of obligations evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’
acceptances (or, without duplication, reimbursement agreements in respect thereof);
(iii) representing
the principal component in respect of obligations to pay the deferred and unpaid balance of the purchase price of any property (including
Financing Lease Obligations) which purchase price is due more than one year from the date of incurrence of the obligation in respect
thereof, except (A) obligations in respect of a commercial or trade letter of credit, current trade or other ordinary course payables
or liabilities or trade accounts and accrued expenses (but not any refinancings, extensions, renewals, or replacements thereof) incurred
in the ordinary course of business and maturing within 365 days after the incurrence thereof, (B) any earn-out obligations or purchase
price adjustments except to the extent such earn-out (x) is not paid within 60 days after such obligation becomes due and payable
(and such earn-out is not being contested by the Issuer in good faith) and (y) such obligation is treated as a liability on the
balance sheet (excluding the footnotes thereto), (C) accruals for payroll and other liabilities accrued in the ordinary course of
business, (D) liabilities associated with customer prepayments and deposits and (E) obligations resulting from take-or-pay
contracts entered into in the ordinary course of business or consistent with past practices or industry norm; or
(iv) representing
the net obligations under any Hedging Obligations,
if and to the extent that any of the foregoing Indebtedness
(other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP; provided that Indebtedness of any direct or indirect parent of the Parent Guarantor
appearing upon the balance sheet of the Parent Guarantor solely by reason of push-down accounting under GAAP shall be excluded;
(b) to
the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, the
obligations of the type referred to in clause (a) of a third Person (whether or not such items would appear upon the balance sheet
of such first Person), other than by endorsement of negotiable instruments for collection in the ordinary course of business; and
(c) to
the extent not otherwise included, the obligations of the type referred to in clause (a) of a third Person secured by a Lien on
any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person; provided that the amount
of any such Indebtedness will be the lesser of (i) the fair market value of such asset at such date of determination and (ii) the
amount of such Indebtedness of such third Person;
provided
that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred
in the ordinary course of business or consistent with industry practice, (b) Non-Financing Lease Obligations, Qualified Securitization
Facilities, straight-line leases, operating leases, Sale and Lease-Back Transactions or lease lease-back transactions, (c) obligations
under any license, permit or other approval (or guarantees given in respect of such obligations) incurred prior to the Issue Date or
in the ordinary course of business or consistent with past practice, (d) in connection with the purchase by the Parent Guarantor
or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent
such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing;
provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent
such payment thereafter becomes fixed and determined, the amount is paid in a timely manner, (e) purchase price holdbacks in respect
of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller, (f) any obligations
attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)
with respect thereto, (g) accrued expenses and royalties, (h) Capital Stock and Disqualified Stock, (i) any obligations
in respect of workers’ compensation claims, unemployment insurance, retirement, post-employment or termination obligations (including
pensions and retiree medical care), pension fund obligations or contributions or similar claims, or social security or wage taxes or
contributions, (j) deferred or prepaid revenues, (k) any asset retirement obligations, (l) any liability for taxes, (m) COLI
Loans or (n) all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms)
and made in the ordinary course of business; provided further that Indebtedness shall be calculated without giving effect to the
effects of Financial Accounting Standards Board Accounting Standards Codification Topic No. 815 and related interpretations to the
extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of
accounting for any embedded derivatives created by the terms of such Indebtedness.
“Indenture” means this Indenture,
as amended, supplemented or otherwise modified from time to time.
“Independent Financial Advisor”
means an accounting, appraisal, investment banking firm or consultant of nationally or internationally recognized standing that is, in
the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged.
“Indirect Participant” means
a Person who holds a beneficial interest in a Global Note through a Participant.
“Initial Notes” has the meaning
set forth in the recitals hereto.
“Initial Purchasers” means
the initial purchasers of the Notes on the Issue Date.
“Intercompany
License Agreement” means any cost sharing agreement, commission or royalty agreement, license or sub-license agreement,
distribution agreement, services agreement, intellectual property rights transfer agreement, any related agreements or other similar
agreements, in each case where all parties to such agreement are one or more of the Parent Guarantor or a Restricted Subsidiary.
“Interest Payment Date” means
January 1 and July 1 of each year to stated maturity.
“Investment Grade Rating” means
a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or if the applicable
securities are not then rated by Moody’s or S&P, an equivalent rating by any other Rating Agency.
“Investment Grade Securities”
means:
(a) securities
issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than
Cash Equivalents);
(b) debt
securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or
advances among the Parent Guarantor and its Subsidiaries;
(c) investments
in any fund that invests at least 90% of its assets in investments of the type described in clauses (a) and (b) which fund
may also hold immaterial amounts of cash pending investment or distribution; and
(d) corresponding
instruments in countries other than the United States customarily utilized for high quality investments.
“Investments” means, as to
any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition
of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution (excluding accounts
receivable, trade credit, advances or extensions of credit to customers and vendors, commission, travel and similar advances to officers,
directors, employees and consultants made in the ordinary course of business) to, Guarantee or assumption of Indebtedness of, or purchase
or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture
interest in such other Person (excluding, in the case of the Parent Guarantor and its Restricted Subsidiaries, (i) intercompany
advances arising from their cash management, tax, and accounting operations, in each case, in the ordinary course of business or consistent
with past practice and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any
roll-over or extensions of terms) and made in the ordinary course of business or consistent with past practice) or (c) the purchase
or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business
of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of the definition
of “Unrestricted Subsidiary” and Section 4.07 hereof:
(a) “Investments”
shall include the portion (proportionate to the Parent Guarantor’s equity interest in such Subsidiary) of the fair market value
of the net assets of a Subsidiary of the Parent Guarantor at the time that such Subsidiary is designated an Unrestricted Subsidiary;
(b) any
property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer; and
(c) if
the Parent Guarantor or any Restricted Subsidiary issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted
Subsidiary such that, after giving effect thereto, such Person is no longer a Restricted Subsidiary, any investment by the Parent Guarantor
or any Restricted Subsidiary in such Person remaining after giving effect thereto shall not be deemed to be an Investment at such time.
For purposes of covenant compliance, the amount
of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases
or decreases in the value of such Investment but less all returns, distributions and similar amounts received on such Investment (which
amounts received shall, for the avoidance of doubt, include the face amount of any Indebtedness of any Person making such Investment
which is assumed by an applicable counterparty, in each case, in respect of such Investment).
“Investors” means (a) any
of the Blackstone Funds and any of their Affiliates but not including, however, any of its or such Affiliate’s holding portfolio
companies, and (b) concurrently with and following the consummation of any Permitted Change of Control, any Permitted Acquiror.
“Issue Date” means June 4,
2024.
“Issuer’s Order” means
a written request or order signed on behalf of the Issuer by an Officer of the Issuer who must be the principal executive officer, the
principal financial officer, the treasurer, the secretary, the principal accounting officer or an executive vice president of the Issuer
and delivered to the Trustee.
“Legal Holiday” means a Saturday,
a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York or at the place of payment
in respect of the Notes. If a payment date is on a Legal Holiday, payment will be made on the next succeeding day that is not a Legal
Holiday and no interest shall accrue on such payment for the intervening period.
“Lien” means, with respect
to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or
encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction; provided that in no event shall Non-Financing Lease Obligations be deemed to constitute a Lien.
“Limited Condition Transaction”
means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other business combination or the acquisition
of Capital Stock or otherwise and which may include, for the avoidance of doubt, a transaction that may constitute a Change of Control)
or other transaction, (2) any incurrence, issuance, prepayment, redemption, repurchase, defeasance, satisfaction and discharge or
repayment of Indebtedness, Disqualified Stock or Preferred Stock, (3) any Restricted Payment, including the designation of any Restricted
Subsidiary or Unrestricted Subsidiary, (4) any Asset Sale or a disposition excluded from the definition of “Asset Sale”
or any fundamental change, (5) a Permitted Change of Control and (6) any other transaction or plan undertaken or proposed to
be undertaken in connection with any of the preceding clauses (1)-(5).
“Long Derivative Instrument”
means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which
generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or
the payment or delivery obligations under which generally increase, with negative changes to the Performance References.
“LTM EBITDA” means EBITDA of
the Parent Guarantor measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination
for which internal consolidated financial statements of the Parent Guarantor are available, with such pro forma adjustments giving effect
to such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations, operational changes,
Business Expansions, new or revised contracts and other transactions, as applicable, since the start of such period and on or prior to
or substantially concurrently with the date of determination as are consistent with the pro forma adjustments set forth in the definition
of “Fixed Charge Coverage Ratio.”
“Management Stockholders” means
the future, present and former members of management, employees, directors, officers, managers, members or partners (and their Controlled
Investment Affiliates and Immediate Family Members) of the Parent Guarantor (or its direct or indirect parent entities) or any Restricted
Subsidiary who are or become direct or indirect holders of Equity Interests of the Parent Guarantor or any direct or indirect parent
companies of the Parent Guarantor, including any such future, present or former employees, directors, officers, managers, members or
partners owning through an Equityholding Vehicle.
“Market Capitalization” means
an amount equal to (a) the total number of issued and outstanding shares of common Equity Interests of the Parent Guarantor (or
any direct or indirect parent entity) on the date of the declaration of a Restricted Payment permitted pursuant to Section 4.07(b)(ix) hereof,
multiplied by (b) the arithmetic mean of the closing prices per share of such common Equity Interests on the principal securities
exchange on which such common Equity Interests are traded for the 30 consecutive trading days immediately preceding the date of declaration
of such Restricted Payment.
“Master Agreement” has the
meaning set forth in the definition of “Hedging Obligations.”
“Moody’s” means Moody’s
Investors Service, Inc. and any successor to its rating agency business.
“Net
Cash Proceeds” means the aggregate Cash Equivalents proceeds received in respect of any Equity Offering, sale of Equity
Interests or other applicable transaction, in each case net of underwriting fees or discounts in respect in such Equity Offering, sale
or other transaction, if applicable.
“Net Income” means, with respect
to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred
Stock dividends.
“Net Proceeds” means the aggregate
Cash Equivalents proceeds received by the Parent Guarantor or any of its Restricted Subsidiaries in respect of any Asset Sale or Casualty
Event, including any Cash Equivalents received upon the sale or other disposition of any Designated Non-cash Consideration received in
any Asset Sale, net of (1) the costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration,
including legal, accounting, consulting and investment banking fees, payments made in order to obtain a necessary consent or required
by applicable law, and brokerage and sales commissions and fees, any relocation expenses incurred as a result thereof, other fees and
expenses, including survey costs, title, search and recordation expenses and title insurance premiums, (2) taxes, including tax
distributions paid pursuant to clause (xx) of Section 4.07(b) hereof paid or payable as a result thereof or any transactions
occurring or deemed to occur to effectuate a payment under this Indenture (including transfer taxes, deed or mortgage recording taxes
and estimated taxes payable in connection with any repatriation of funds and after taking into account any available tax credits or deductions
and any tax sharing arrangements), (3) amounts required to be applied to the repayment of principal, premium, if any, and interest
on Senior Indebtedness or amounts required to be applied to the repayment of Indebtedness secured by a Lien on such assets and required
to be paid as a result of such transaction, (4) the pro rata portion of Net Proceeds thereof (calculated without regard to this
clause (4)) attributable to minority interests and not available for distribution to or for the account of the Parent Guarantor
and its Restricted Subsidiaries as a result thereof, (5) any costs associated with unwinding any related Hedging Obligations in
connection with such transaction, (6) any deduction of appropriate amounts to be provided by the Parent Guarantor or any of its
Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction
and retained by the Parent Guarantor or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension
and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations
associated with such transaction, (7) any portion of the purchase price from an Asset Sale placed in escrow, whether as a reserve
for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Sale or otherwise in connection with such
Asset Sale; provided, that upon the termination of that escrow (other than in connection with a payment in respect of any such
adjustment or satisfaction of indemnities), Net Proceeds will be increased by any portion of funds in the escrow that are released to
the Parent Guarantor or any of its Restricted Subsidiaries and (8) the amount of any liabilities (other than Indebtedness in respect
of the Senior Secured Credit Facilities and the Notes) directly associated with such asset being sold and retained by the Parent Guarantor
or any of its Restricted Subsidiaries; provided that (x) the proceeds realized in any single transaction or series of related
transactions shall not constitute Net Proceeds unless the amount of such proceeds exceeds (and only to the extent in excess of) the greater
of (i) $115.0 million and (ii) 15.0% of LTM EBITDA and (y) only the aggregate amount of net proceeds (excluding, for the
avoidance of doubt, Net Proceeds described in the preceding clause (x)) in excess of the greater of (i) $230.0 million and (ii) 30.0%
of LTM EBITDA in any fiscal year shall constitute “Net Proceeds” under this definition. Any non-cash consideration received
in connection with any Asset Sale that is subsequently converted to cash shall become Net Proceeds only at such time as it is so converted.
Net Proceeds denominated in a currency other than U.S. dollars shall be the U.S. Dollar Equivalent of such Net Proceeds.
“Net Short” means, with respect
to a Holder or beneficial owner, as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds
the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination
or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined
in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Issuer or any Guarantor immediately prior to such
date of determination.
“Non-Debt Fund Affiliate” means
any Affiliate of Parent Guarantor other than (x) Parent Guarantor, the Issuer or any of their Subsidiaries, (y) any Debt Fund
Affiliates and (z) any natural person.
“Non-Financing Lease Obligation”
means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income
statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall
be considered a Non-Financing Lease Obligation.
“Non-U.S. Person” means a Person
who is not a U.S. Person.
“Notes” means the Initial Notes
and more particularly means any Note authenticated and delivered under this Indenture. Unless the context requires otherwise, all references
to “Notes” for all purposes of this Indenture shall include any Additional Notes that are actually issued and authenticated.
The Initial Notes issued by the Issuer and any Additional Notes subsequently issued under this Indenture will be treated as a single
class for all purposes under this Indenture, including waivers, amendments, redemptions and offers to purchase, except for certain waivers
and amendments as set forth herein.
“Obligations” means any principal,
interest (including any interest accruing on or subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding
at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable
state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with
respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal,
interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing
any Indebtedness.
“Offering Memorandum” means
the offering memorandum, dated May 22, 2024, relating to the sale of the Initial Notes.
“Officer” means the Chairman
of the Board, any member of the Board, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the President,
any Executive Vice President, Senior Vice President, Vice President or Assistant Vice President, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of a Person or any other officer of such Person designated by any such individuals.
Unless otherwise specified, reference to an “Officer” means an Officer of the Parent Guarantor.
“Officer’s Certificate”
means a certificate signed on behalf of a Person by an Officer of such Person. Unless otherwise specified, reference to an “Officer’s
Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer.
“Opinion of Counsel” means
a written opinion (which opinion may be subject to customary assumptions and exclusions) from legal counsel who is reasonably acceptable
to the Trustee. The counsel may be an employee of, or outside counsel to, the Issuer or a Guarantor.
“Original Issue Date” means
July 3, 2014.
“Parent Guarantor” means Gates
Industrial Holdco Limited, if it is the direct or indirect parent of the Issuer, or, if not, an entity (or combination of entities) that
directly or indirectly own 100% of the issued and outstanding Equity Interests in the Issuer and assumes all of the obligations of the
“Parent Guarantor” under this Indenture pursuant to a supplemental indenture.
“Participant” means, with respect
to the Depositary, a Person who has an account with the Depositary (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Acquiror” means
any Person or group whose acquisition of beneficial ownership constitutes a Permitted Change of Control.
“Permitted Asset Swap” means
the substantially concurrent purchase and sale or exchange, including as a deposit for future purchases, of Related Business Assets or
a combination of Related Business Assets and Cash Equivalents between the Parent Guarantor or any of its Restricted Subsidiaries and
another Person; provided that any Cash Equivalents received in excess of the value of any Cash Equivalents sold or exchanged must
be applied in accordance with Section 4.10 hereof.
“Permitted Change of Control”
means any Change of Control that does not constitute a Change of Control Triggering Event.
“Permitted Change of Control Costs”
means all fees, costs and expenses incurred or payable by the Parent Guarantor (or any direct or indirect parent of the Parent Guarantor)
or any of its Restricted Subsidiaries in connection with a Permitted Change of Control and the transactions contemplated thereby.
“Permitted Holders” means any
of (i) each of the Investors, (ii) each of the Management Stockholders and any Affiliates thereof (including any Management
Stockholders holding Equity Interests through an Equityholding Vehicle), (iii) any Person who is acting solely as an underwriter
in connection with a public or private offering of Capital Stock of the Parent Guarantor or any of its direct or indirect parent companies,
acting in such capacity, (iv) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act as in effect on the Issue Date) of which any of the foregoing, any Holding Company, Permitted Plan or any Person or group that becomes
a Permitted Holder specified in the last sentence of this definition are members and any member of such group; provided that in
the case of such group and without giving effect to the existence of such group or any other group, Persons referred to in subclauses
(i) through (iv), collectively, have beneficial ownership of more than 50.0% of the total voting power of the Voting Stock of the
Parent Guarantor or any of its direct or indirect parent companies held by such group, (v) any Holding Company and (vi) any
Permitted Plan. Any Person or group whose acquisition of beneficial ownership constitutes (i) a Change of Control in respect of
which a Change of Control Offer or Alternate Offer is made or waived in accordance with the requirements of this Indenture or (ii) a
Permitted Change of Control, will thereafter, together with its Affiliates, constitute an additional Permitted Holder.
“Permitted Intercompany Activities”
means (A) any transactions between or among the Parent Guarantor and/or its Restricted Subsidiaries that are entered into in the
ordinary course of business of the Parent Guarantor and its Restricted Subsidiaries and, in the good faith judgment of the Parent Guarantor
are necessary or advisable in connection with the ownership or operation of the business of the Parent Guarantor and its Restricted Subsidiaries,
including, but not limited to, (i) payroll, cash management, purchasing, insurance and hedging arrangements; (ii) management,
technology and licensing arrangements; and (iii) customer loyalty and rewards programs; (B) any transactions between or among
the Parent Guarantor, its Restricted Subsidiaries and any Captive Insurance Subsidiary or (C) any Permitted Tax Restructuring.
“Permitted Investments” means:
(a) any
Investment in the Parent Guarantor or any of its Restricted Subsidiaries;
(b) any
Investment in Cash Equivalents or Investment Grade Securities;
(c) any
Investment by the Parent Guarantor or any of its Restricted Subsidiaries in a Person (including, to the extent constituting an Investment,
in assets of a Person that represent all or substantially all of its assets or a division, business unit or product line, including research
and development and related assets in respect of any product or other assets) if as a result of such Investment:
(i) such
Person becomes a Restricted Subsidiary (including by means of a Division); or
(ii) such
Person, in one transaction or a series of related transactions, is amalgamated, merged or consolidated with or into, or transfers or
conveys all or substantially all of its assets (or such division, business unit or product line or other assets) to, or is liquidated
into, the Parent Guarantor or a Restricted Subsidiary,
and, in each case, any Investment held by such Person; provided
that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or
transfer;
(d) any
Investment in securities or other assets, including earn-outs, not constituting Cash Equivalents or Investment Grade Securities and received
in connection with an Asset Sale made pursuant to Section 4.10(a) hereof or any other disposition of assets not constituting
an Asset Sale;
(e) any
Investment existing on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or an Investment consisting
of any extension, modification, replacement, reinvestment or renewal of any such Investment or binding commitment existing on the Issue
Date; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment
or renewal only (i) as required by the terms of such Investment or binding commitment as in existence on the Issue Date (including
as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) or (ii) as
otherwise permitted under this Indenture;
(f) any
Investment acquired by the Parent Guarantor or any of its Restricted Subsidiaries:
(i) consisting
of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary
course of business or consistent with past practice, and Investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors and other credits to suppliers in the ordinary course of business or consistent with past practice;
(ii) in
exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Parent Guarantor or any
such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer
of such other Investment or accounts receivable (including any trade creditor, supplier or customer);
(iii) in
satisfaction of judgments against other Persons; or
(iv) as
a result of a foreclosure by the Parent Guarantor or any of its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
(g) Hedging
Obligations permitted under Section 4.09(b)(x) hereof;
(h) any
Investment in a Similar Business (including Unrestricted Subsidiaries and joint ventures) having an aggregate fair market value taken
together with all other Investments made pursuant to this clause (h) that are at that time outstanding not to exceed the greater
of (a) $300.0 million and (b) 40.0% of LTM EBITDA (in each case, determined on the date such Investment is made, with the fair
market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus
the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments,
income and similar amounts) in respect of such investments; provided, however, that if any Investment pursuant to this
clause (h) is made in any Person that is not a Restricted Subsidiary of the Parent Guarantor at the date of the making of such Investment
and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant
to clause (a) above and shall cease to have been made pursuant to this clause (h);
(i) Investments
the payment for which consists of Equity Interests (other than Disqualified Stock) of the Parent Guarantor or any of its direct or indirect
parent companies; provided that such Equity Interests will not increase the amount available for Restricted Payments under Section 4.07(a)(B) hereof;
(j) guarantees
of Indebtedness permitted under Section 4.09 hereof, performance guarantees and Contingent Obligations and the creation of
Liens on the assets of the Parent Guarantor or any Restricted Subsidiary in compliance with Section 4.12 hereof;
(k) any
transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 4.11(b) hereof
(except transactions described in clauses (ii), (v), (x) and (xxiii) of Section 4.11(b) hereof);
(l) Investments
consisting of (i) purchases or other acquisitions of inventory, supplies, material or equipment, (ii) the leasing, subleasing,
licensing, sub-licensing, cross-licensing or contribution of intellectual property or pursuant to joint marketing arrangements with other
Persons or (iii) the contribution, assignment, licensing, cross-licensing, sub-licensing lease, sublease or other Investment
of intellectual property or other general intangibles pursuant to (A) any Intercompany License Agreement and any other Investments
made in connection therewith or (B) any joint research or development, joint venture, or strategic alliance arrangements with other
Persons;
(m) Investments
having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (m) that are at that
time outstanding not to exceed the greater of (a) $300.0 million and (b) 40.0% of LTM EBITDA (in each case, determined on the
date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect
to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns
of principal, profits on sale, repayments, income and similar amounts) in respect of such investments; provided, however,
that if any Investment pursuant to this clause (m) is made in any Person that is not a Restricted Subsidiary of the Parent Guarantor
at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter
be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause (m);
(n) Investments
in or relating to a Securitization Subsidiary in connection with a Qualified Securitization Facility (including any contribution of replacement
or substitute assets to such Subsidiary or any repurchase obligation in connection therewith);
(o) loans
and advances to, or guarantees of Indebtedness of, future, present or former employees, directors, officers, managers, members, partners,
independent contractors, consultants or other service providers not in excess of the greater of (a) $40.0 million and (b) 5.0%
of LTM EBITDA outstanding at any one time;
(p) loans
and advances to future, present or former employees, directors, officers, managers, members, partners, independent contractors, consultants
or other service providers (i) for business-related travel or entertainment expenses, moving expenses and other similar expenses
or payroll advances, in each case incurred in the ordinary course of business or consistent with industry practices or (ii) to fund
such Person’s purchase of Equity Interests of the Parent Guarantor or any direct or indirect parent company thereof or in any management
equity vehicle so investing in such Equity Interests;
(q) (a) advances,
loans or extensions of trade credit in the ordinary course of business or consistent with past practice or industry norm by the Parent
Guarantor or any of its Restricted Subsidiaries, (b) Investments constituting deposits, prepayments and/or other credits to suppliers
and (c) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer
contracts and loans or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and licensees
in the ordinary course of business or consistent with past practice or industry norm;
(r)
any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements
or related activities arising in the ordinary course of business or consistent with past practice;
(s) Investments
consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with past practice;
(t) Investments
made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client
and customer contacts;
(u) Investments
in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar
deposits entered into as a result of the operations of the business in the ordinary course of business or consistent with past practice;
(v) repurchases
of the Notes and loans or securities issued under any Credit Facilities;
(w) Investments
in the ordinary course of business or consistent with past practice consisting of Uniform Commercial Code Article 3 endorsements
for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(x) Investments
consisting of promissory notes issued by the Parent Guarantor or any Restricted Subsidiary to future, present or former employees, directors,
officers, managers, members, partners, independent contractors or consultants of the Parent Guarantor or any of its Subsidiaries or their
respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Guarantor or any
direct or indirect parent thereof, to the extent the applicable Restricted Payment is permitted by Section 4.07 hereof;
(y) Investments
(including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers
or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business
or consistent with past practice or upon the foreclosure with respect to any secured Investment or other transfer of title with respect
to any secured Investment;
(z) any
Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to the Parent Guarantor or any of its Subsidiaries,
which Investment is made in the ordinary course of business or consistent with past practice of such Captive Insurance Subsidiary, or
by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction
over such Captive Insurance Subsidiary or its business, as applicable;
(aa) Investments
made in connection with Permitted Intercompany Activities and related transactions;
(bb) Investments
made after the Issue Date in joint ventures of the Parent Guarantor or any of its Restricted Subsidiaries existing on the Issue Date;
(cc) Investments
in joint ventures or non-Wholly Owned Subsidiaries of the Parent Guarantor or any of its Restricted Subsidiaries, taken together with
all other Investments made pursuant to this clause (cc) that are at that time outstanding not to exceed the greater of (i) $230.0
million and (ii) 30.0% of LTM EBITDA (in each case, determined on the date such Investment is made, with the fair market value of
each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of
any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar
amounts) in respect of such investments;
(dd) Investments
made from casualty insurance proceeds in connection with the replacement, substitution, restoration or repair of assets on account of
a Casualty Event;
(ee) earnest
money deposits required in connection with any acquisition or Investment permitted under this Indenture (or similar transactions);
(ff) Investments
to the extent required by applicable rules under the Exchange Act or by any governmental authority, including any Investment made
in order to avoid any early warning or notice requirements under such rules or requirements;
(gg) contributions
to a “rabbi” trust for the benefit of future, present or former employees, directors, officers, managers, members, partners,
independent contractors or consultants or other service providers or other grantor trusts subject to claims of creditors in the case
of bankruptcy of the Parent Guarantor or any of its Restricted Subsidiaries;
(hh) (a) pension
fund and other employee benefit plan obligations and liabilities and (b) Investments of assets relating to any non-qualified deferred
payment plan or similar employee compensation plan in the ordinary course of business, consistent with past practice or consistent with
industry norm;
(ii) any
other Investment, so long as, after giving pro forma effect to such Investment, the Consolidated Total Debt Ratio shall be no greater
than 5.50 to 1.00;
(jj) Investments
having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (jj) that are at that time
outstanding not to exceed the Available RP Capacity Amount (determined on the date such Investment is made, with the fair market value
of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any
returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar
amounts) in respect of such investments; provided, however, that if any Investment pursuant to this clause (jj) is made
in any Person that is not a Restricted Subsidiary of the Parent Guarantor at the date of the making of such Investment and such Person
becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) above
and shall cease to have been made pursuant to this clause (jj);
(kk) Investments
constituting COLI Loans;
(ll) Investments
made in connection with a Permitted Change of Control;
(mm) to
the extent constituting an Investment, Investments consisting of escrow deposits to secure indemnification obligations in connection
with (i) a disposition or (ii) an acquisition of any business, assets or a Subsidiary not prohibited by this Indenture;
(nn) guarantee
obligations of the Parent Guarantor or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations
issued, made or incurred for the benefit of the Parent Guarantor or any Restricted Subsidiary 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;
(oo) Investments
solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this definition of “Permitted
Investments”;
(pp) Investments
in deposit accounts and securities accounts in the ordinary course of business or consistent with past practice or industry norm;
(qq) deposits
in the ordinary course of business or consistent with past practice or industry norm to secure the performance of Non-Financing Lease
Obligations or utility contracts, or in connection with obligations in respect of tenders, statutory obligations, surety, stay and appeal
bonds, bids, licenses, leases, government contracts, trade contracts, performance and return-of-money bonds, completion guarantees and
other similar obligations (exclusive of obligations for the payment of borrowed money) incurred in the ordinary course of business or
consistent with past practice or industry norm;
(rr) acquisitions
by the Parent Guarantor or any Restricted Subsidiary of obligations of one or more directors, officers, employees, member or management
or consultants or independent contractors of the Parent Guarantor or any of its Restricted Subsidiaries, in connection with such Person’s
acquisition of Equity Interests of any direct or indirect parent thereof, so long as no cash is actually advanced by the Parent Guarantor
or any of its Subsidiaries to such Person in connection with the acquisition of any such obligations;
(ss) loans
and advances to customers in the ordinary course of business or consistent with past practice or industry norm in respect of the payment
of insurance premiums;
(tt) Investments
consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with past practice or
industry norm; and
(uu) non-cash
Investments made in connection with tax planning and reorganization activities.
For purposes of determining compliance
with this definition, in the event that a proposed Investment (or a portion thereof) meets the criteria of clauses (a) through (uu) above,
the Issuer will be entitled to divide or classify or later divide or reclassify (based on circumstances existing on the date of such
reclassification) such Investment (or a portion thereof) between such clauses (a) through (uu) in any manner that otherwise
complies with this definition.
“Permitted Liens” means, with
respect to any Person:
(a) pledges,
deposits or security by such Person under workmen’s compensation laws, unemployment insurance, employers’ health tax, and
other social security laws or similar legislation or other insurance-related obligations (including, but not limited to, in respect of
deductibles, self-insured retention amounts and premiums and adjustments thereto) or indemnification obligations of (including obligations
in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance,
or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for
the payment of rent, in each case incurred in the ordinary course of business or consistent with past practice;
(b) Liens
imposed by law, such as landlords’, carriers’, warehousemen’s, materialmen’s, repairmen’s, mechanics’
and other similar Liens, in each case for sums not yet overdue for a period of more than 60 days or, if more than 60 days overdue, that
are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith by appropriate actions
or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with
an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance
with GAAP;
(c) Liens
for taxes, assessments or other governmental charges (including any Lien imposed by any pension authority or similar Liens) not yet overdue
for a period of more than 60 days or not yet payable or subject to penalties for nonpayment or which 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;
(d) Liens
in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory
requirements or letters of credit or bankers acceptances issued, and completion guarantees provided for, in each case, issued pursuant
to the request of and for the account of such Person in the ordinary course of its business or consistent with past practice;
(e) minor
survey exceptions, minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights-of-way,
servitudes, sewers, electric lines, drains, telegraph, telephone and cable television lines and other similar purposes, or zoning, building
codes or other restrictions (including minor defects and irregularities in title and similar encumbrances) as to the use of real properties
or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection
with Indebtedness and which do not in the aggregate materially interfere with the ordinary conduct of the business of the Parent Guarantor
or any of its Restricted Subsidiaries, taken as a whole, and exceptions on title policies insuring Liens granted on any collateral;
(f) Liens
securing Obligations relating to any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to clauses
(iv), (xii), (xiii), (xiv), (xxiii), (xxv), (xxix) or (xxxi) of Section 4.09(b) hereof;
provided that (i) Liens securing Obligations relating to any Indebtedness, Disqualified Stock or Preferred Stock to be incurred
pursuant to clause (iv) of Section 4.09(b) hereof extend only to the assets so purchased, leased, expanded,
constructed, installed, replaced, repaired or improved (plus improvements, accessions, proceeds or dividends or distributions in respect
thereof, or replacements of any thereof); provided further that individual financings of assets provided by one lender or group
of lenders may be cross-collateralized to other financings of assets by such lender or group of lenders or their Affiliates; (ii) Liens
securing Obligations relating to any Indebtedness permitted to be incurred pursuant to clause (xiii) of Section 4.09(b) hereof
relate only to Obligations relating to Refinancing Indebtedness that (x) is secured by Liens on all or a portion of the same assets
or the same categories or types of assets as the assets (plus improvements, accessions, proceeds or dividends or distributions in respect
thereof, or replacements of any thereof) that secured the Indebtedness being refinanced; provided further that individual financings
of assets provided by one lender or group of lenders may be cross-collateralized to other financings of assets by such lender or group
of lenders or their Affiliates; or (y) extends, replaces, refunds, refinances, renews or defeases Indebtedness incurred or Disqualified
Stock or Preferred Stock issued under clauses (iii) (solely to the extent such Indebtedness was secured by a Lien prior to
such refinancing), (iv), (xii) or (xxix) of Section 4.09(b) hereof; (iii) Liens securing
Indebtedness permitted to be incurred pursuant to clauses (xiv)(B) or (xxxi) of Section 4.09(b) hereof
shall only be permitted if such Liens are limited to all or a part of the same property or assets, including Capital Stock acquired (plus
improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof), or of a Person
acquired or merged or consolidated with or into the Parent Guarantor or any Restricted Subsidiary, in any transaction to which such Indebtedness
relates; and (iv) Liens securing Indebtedness permitted to be incurred pursuant to clauses (xxiii) and (xxv) of
Section 4.09(b) hereof shall only be permitted if such Liens extend only to the assets of Restricted Subsidiaries of the
Parent Guarantor that are not the Issuer or a Subsidiary Guarantor (plus improvements, accessions, proceeds or dividends or distributions
in respect thereof, or replacements of any thereof);
(g) Liens
existing on the Issue Date (excluding Liens securing the Senior Secured Credit Facilities), including Liens securing any Refinancing
Indebtedness of any Indebtedness secured by such Liens;
(h) Liens
on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary; provided that such Liens
are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided further
that such Liens may not extend to any other property or other assets owned by the Parent Guarantor or any of its Restricted Subsidiaries;
(i) Liens
on property or other assets at the time the Parent Guarantor or a Restricted Subsidiary acquired the property or such other assets, including
any acquisition by means of a merger, amalgamation or consolidation with or into the Parent Guarantor or any of its Restricted Subsidiaries;
provided that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, amalgamation,
merger or consolidation; provided further that the Liens may not extend to any other property owned by the Parent Guarantor or
any of its Restricted Subsidiaries;
(j) Liens
securing Obligations relating to any Indebtedness or other obligations of the Parent Guarantor or a Restricted Subsidiary owing to the
Parent Guarantor or a Restricted Subsidiary permitted to be incurred in accordance with Section 4.09 hereof;
(k) Liens
securing (x) Hedging Obligations and (y) obligations in respect of Bank Products;
(l) Liens
on specific items of inventory or other goods and proceeds of any Person securing such Person’s accounts payable or similar trade
obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or other goods;
(m) leases,
subleases, licenses or sub-licenses granted to others in the ordinary course of business or consistent with past practice which do not
materially interfere with the ordinary conduct of the business of the Parent Guarantor or any of its Restricted Subsidiaries, taken as
a whole;
(n) Liens
arising from Uniform Commercial Code (or equivalent statute) financing statement filings regarding operating leases or consignments entered
into by the Parent Guarantor and its Restricted Subsidiaries in the ordinary course of business or consistent with industry practice
or purported Liens evidenced by the filing of precautionary Uniform Commercial Code (or equivalent statute) financing statements or similar
public filings;
(o) Liens
in favor of the Issuer or any Guarantor;
(p) Liens
on vehicles or equipment of the Parent Guarantor or any of its Restricted Subsidiaries granted in the ordinary course of business or
consistent with past practice;
(q) Liens
on receivables, Securitization Assets and related assets incurred in connection with a Qualified Securitization Facility;
(r) Liens
to secure any modification, refinancing, refunding, restatement, exchange, extension, renewal or replacement (or successive refinancing,
refunding, restatements, exchange, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (g), (h) and (i) above, this clause (r) and clauses (mm) and (qq) below; provided
that (i) such new Lien shall be limited to all or a part of the same assets or the same categories or types of assets as the
assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) that
secured the original Lien, and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than
the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (f),
(g), (h) and (i) above, this clause (r) and clauses (mm) and (qq) below at the time the original Lien became a Permitted
Lien under this Indenture, and (B) an amount necessary to pay any fees and expenses (including original issue discount, upfront
fees or similar fees) and premiums (including tender premiums) and accrued and unpaid interest, related to such modification, refinancing,
refunding, extension, renewal or replacement;
(s) deposits
made or other security provided in the ordinary course of business or consistent with past practice to secure liability to insurance
carriers;
(t) Liens
securing obligations in an aggregate principal amount outstanding which does not exceed the greater of (a) $230.0 million and (b) 30.0%
of LTM EBITDA (in each case, determined as of the date of such incurrence);
(u) security
given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with
the operations of that Person in the ordinary course of business or consistent with past practice;
(v) Liens
(i) securing judgments, awards, attachments or decrees for the payment of money not constituting an Event of Default under clause
(v) of Section 6.01(a) hereof or (ii) securing appeal or other surety bonds related to such judgments;
(w) 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 or consistent with past practice;
(x) Liens
(i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code or any comparable or successor provision
on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred
in the ordinary course of business or consistent with past practice, and (iii) in favor of banking or other financial institutions
arising as a matter of law or under general terms and conditions encumbering deposits or other funds maintained with a financial institution
(including the right of set-off) and which are within the general parameters customary in the banking industry;
(y) Liens
deemed to exist in connection with Investments in repurchase agreements permitted under Section 4.09 hereof;
(z) Liens
encumbering reasonable customary deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business or consistent with past practice and not for speculative purposes;
(aa) Liens
that are contractual rights of set-off or netting or rights of pledge (i) relating to the establishment of depository relations
with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Parent
Guarantor or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course
of business of the Parent Guarantor and its Restricted Subsidiaries or consistent with past practice or (iii) relating to purchase
orders and other agreements entered into with customers of the Parent Guarantor or any of its Restricted Subsidiaries in the ordinary
course of business or consistent with past practice;
(bb) Liens
securing obligations owed by the Parent Guarantor or any Restricted Subsidiary to any lender under the Senior Secured Credit Facilities
or any Affiliate of such a lender in respect of any overdraft and related liabilities arising from treasury, depository and cash management
services or any automated clearing house transfers of funds;
(cc) any
encumbrance or restriction (including put and call arrangements, rights of first refusal, tag, drag and similar rights) with respect
to Capital Stock of any joint venture, non-Wholly Owned Subsidiary or similar arrangement pursuant to any joint venture or similar agreement;
(dd) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into
by the Parent Guarantor or any Restricted Subsidiary in the ordinary course of business or consistent with past practice;
(ee) Liens
solely on any cash earnest money deposits made by the Parent Guarantor or any of its Restricted Subsidiaries in connection with any letter
of intent or purchase agreement permitted by this Indenture;
(ff) ground
leases in respect of real property on which facilities owned or leased by the Parent Guarantor or any of its Subsidiaries are located;
(gg) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(hh) Liens
on Capital Stock of an Unrestricted Subsidiary that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(ii) Liens
on the assets and Equity Interests of non-guarantor Restricted Subsidiaries securing Indebtedness of such Subsidiaries that were permitted
by the terms of this Indenture to be incurred;
(jj) Liens
on (i) cash advances or Cash Equivalents in favor of (x) the seller of any property to be acquired in an Investment permitted
under this Indenture to be applied against the purchase price for such Investment or (y) the buyer of any property to be
disposed of to secure obligations in respect of indemnification, termination fee or similar seller obligations and (ii) consisting
of an agreement to dispose of any property in a disposition, in each case, solely to the extent such Investment or disposition, as the
case may be, would have been permitted on the date of the creation of such Lien;
(kk) any
interest or title of a lessor, sublessor, franchisor, licensor or sub-licensor or secured by a lessor’s, sublessor’s, franchisor’s,
licensor’s or sub-licensor’s interest under leases, subleases, licenses or sub-licenses entered into by the Parent Guarantor
or any of its Restricted Subsidiaries in the ordinary course of business or consistent with past practice or with respect to intellectual
property, software and other technology licenses that is not material to the conduct of the business of the Parent Guarantor or its Restricted
Subsidiaries, taken as a whole;
(ll) deposits
of cash with the owner or lessor of premises leased and operated by the Parent Guarantor or any of its Subsidiaries in the ordinary course
of business of the Parent Guarantor and such Subsidiary or consistent with past practice to secure the performance of the Parent Guarantor’s
or such Subsidiary’s obligations under the terms of the lease for such premises;
(mm) Liens
securing Indebtedness (including Liens securing any Obligations in respect thereof) permitted to be incurred pursuant to Section 4.09
hereof (including, without limitation, Indebtedness incurred under one or more Credit Facilities) so long as after giving pro forma
effect to such incurrence and such Liens the Consolidated Secured Debt Ratio of the Parent Guarantor and its Restricted Subsidiaries
shall be equal to or less than 6.00 to 1.00 for the Parent Guarantor’s most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on which such Lien is incurred;
(nn) Liens
securing obligations in respect of (1) Indebtedness and other Obligations permitted to be incurred under one or more Credit Facilities,
including any letter of credit facility relating thereto, that was permitted by the terms of this Indenture to be incurred pursuant to
Section 4.09(b)(i) and (2) obligations of the Parent Guarantor or any Subsidiary in respect of any Bank Products
or Hedging Obligation;
(oo) Liens
on assets deemed to arise in connection with and solely as a result of the execution, delivery or performance of contracts to sell such
assets if such sale is otherwise permitted under this Indenture;
(pp) Liens
on any funds or securities held in escrow accounts or similar arrangements established for the purpose of holding proceeds from issuances
of debt securities or incurrences of other Indebtedness by the Parent Guarantor or any of its Restricted Subsidiaries issued after the
Issue Date, together with any additional funds required in order to fund any payment of interest or premium or discount on such Indebtedness
(or any costs related to the issuance or incurrence of such Indebtedness), mandatory redemption or sinking fund payment on such debt
securities or other Indebtedness;
(qq) Liens
securing the Notes (other than any Additional Notes) and the related Guarantees;
(rr) Liens
on assets securing any Indebtedness owed to any Captive Insurance Subsidiary by the Parent Guarantor or any Restricted Subsidiary;
(ss) Liens
associated with COLI Loans;
(tt) Liens
on vehicles or equipment of the Parent Guarantor or any of the Restricted Subsidiaries granted in the ordinary course of business or
consistent with past practice or industry norm;
(uu) Liens
granted pursuant to a security agreement between the Parent Guarantor or any Restricted Subsidiary and a licensee of intellectual property
to secure the damages, if any, of such licensee resulting from the rejection of the license of such licensee in a bankruptcy, reorganization
or similar proceeding with respect to the Parent Guarantor or such Restricted Subsidiary;
(vv) Liens
on cash and Cash Equivalents arising in connection with the defeasance, satisfaction, discharge or redemption of Indebtedness, so long
as such defeasance, satisfaction, discharge or redemption is not prohibited by the terms of this Indenture;
(ww) customary
Liens granted in favor of a trustee to secure fees and other amounts owing to such trustee under an indenture or other agreement pursuant
to which Indebtedness not prohibited by this Indenture is incurred; and
(xx) Liens
on receivables, Securitization Assets and related assets including proceeds thereof incurred in connection with (i) a Qualified
Securitization Facility or (ii) being sold in factoring arrangements entered into in the ordinary course of business or consistent
with past practice or industry norm.
For purposes of this definition, the term “Indebtedness”
shall be deemed to include interest on such Indebtedness. In the event that a Permitted Lien meets the criteria of more than one of the
types of Permitted Liens (at the time of incurrence or at a later date), the Issuer in its sole discretion may divide, classify or from
time to time reclassify all or any portion of such Permitted Lien in any manner that complies with this Indenture and such Permitted
Lien shall be treated as having been made pursuant only to the clause or clauses of the definition of “Permitted Lien” to
which such Permitted Lien has been classified or reclassified.
“Permitted
Plan” means any employee benefits plan of the Parent Guarantor or any of its Affiliates (including any Equityholding
Vehicle) and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Person” means any individual,
corporation, limited liability company, partnership (including a limited partnership), joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Permitted Tax Restructuring”
means any reorganizations and other transactions entered into among the Parent Guarantor (or any direct or indirect parent entity thereof)
and/or its Restricted Subsidiaries for tax planning (as determined by the Parent Guarantor in good faith) so long as such reorganizations
and other transactions do not impair the value of the Notes and the Guarantees, taken as a whole, in any material respect.
“Preferred Stock” means any
Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.
“primary obligations” has the
meaning set forth in the definition of “Contingent Obligations.”
“primary obligor” has the meaning
set forth in the definition of “Contingent Obligations.”
“Private Placement Legend”
means the legend set forth in Section 2.06(h)(i) hereof to be placed on all Notes issued under this Indenture, except
where otherwise permitted by the provisions of this Indenture.
“Public Company Costs” means
costs 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, costs relating to compliance with the provisions of the Securities
Act and the Exchange Act, as applicable to companies with equity or debt securities held by the public, and the rules of national
securities exchanges, as applicable to companies with listed equity or debt securities, listing fees, independent directors’ compensation,
fees and expense reimbursement, costs relating to investor relations (including any such costs in the form of investor relations employee
compensation), shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance, legal
and other professional fees and/or other costs or expenses, in each case, to the extent arising solely as a result of becoming or being
a public company.
“Purchase Money Obligations”
means any Indebtedness incurred to finance or refinance the acquisition, leasing, expansion, construction, development, installation,
replacement, relocation, renewal, maintenance, upgrade, repair or improvement of property (real or personal), equipment or any other
assets, and whether acquired through the direct acquisition of such property or assets, or otherwise (including through the purchase
of Capital Stock of any Person owning such property or assets).
“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.
“Qualified Proceeds” means
the fair market value of assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Qualified Securitization Facility”
means any Securitization Facility (i) constituting a securitization financing facility in respect of which the Board or management
of the Parent Guarantor or any direct or indirect parent entity shall have determined in good faith that such Securitization Facility
is in the aggregate economically fair and reasonable to the Parent Guarantor or (ii) constituting a receivables or payables financing
or factoring facility.
“Rating Agencies” means Moody’s
and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical
rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both,
as the case may be.
“Record Date” means, for the
interest payable on any applicable Interest Payment Date, the June 15 and December 15 (whether or not a Business Day) immediately
preceding such Interest Payment Date.
“Regulation S” means Regulation
S promulgated under the Securities Act.
“Regulation S Global Note”
means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as applicable.
“Regulation S Permanent Global Note”
means a permanent Global Note, substantially in the form of Exhibit A, bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, issued in a denomination equal
to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the applicable Restricted Period.
“Regulation S Temporary Global Note”
means a temporary Global Note, substantially in the form of Exhibit A, bearing the Global Note Legend and the Private Placement
Legend and the Regulation S Temporary Global Note Legend and deposited with or on behalf of, and registered in the name of, the Depositary
or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903.
“Regulation S Temporary Global Note Legend”
means the legend set forth in Section 2.06(h)(iii) hereof.
“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 of Governors 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.
“Related Business Assets” means
assets (other than Cash Equivalents) used or useful in a Similar Business or any securities of a Person received by the Parent Guarantor
or a Restricted Subsidiary in exchange for assets transferred by the Parent Guarantor or a Restricted Subsidiary.
“Required Holders” means the
Holders of a majority in principal amount of all the then outstanding Notes; provided that to the same extent set forth under
the second paragraph of Section 2.09 hereof with respect to the determination of Required Holders, the Notes held or beneficially
owned by any Affiliated Holder shall in each case be excluded for purposes of making a determination of Required Holders.
“Reserved Indebtedness Amount”
has the meaning set forth in Section 4.09 hereof.
“Responsible Officer” means,
when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any managing director,
director, vice president, assistant vice president, assistant secretary, associate assistant treasurer, trust officer or any other officer
of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject
and, in each case, who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Notes”
means a Definitive Note bearing, or that is required to bear, the Private Placement Legend.
“Restricted Global Notes” means
a Global Note bearing, or that is required to bear, the Private Placement Legend.
“Restricted Investment” means
an Investment other than a Permitted Investment.
“Restricted Period” means,
in respect of any Note issued under Regulation S, the 40-day distribution compliance period as defined in Regulation S applicable to
such Note.
“Restricted Subsidiary” means,
with respect to any Person, at any time, any direct or indirect Subsidiary of such Person (including any Foreign Subsidiary) that is
not then an Unrestricted Subsidiary; provided that upon an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such
Subsidiary shall be included in the definition of “Restricted Subsidiary.” Unless the context otherwise requires, any references
to Restricted Subsidiary refer to a Restricted Subsidiary of the Parent Guarantor.
“Rule 144” means Rule 144
promulgated under the Securities Act.
“Rule 144A” means Rule 144A
promulgated under the Securities Act.
“Rule 903” means Rule 903
promulgated under the Securities Act.
“Rule 904” means Rule 904
promulgated under the Securities Act.
“S&P” means S&P Global
Ratings, a business unit of Standard & Poor’s Financial Services LLC, and any successor to its rating agency business.
“Sale and Lease-Back Transaction”
means any arrangement providing for the leasing (or similar arrangement) by the Parent Guarantor or any of its Restricted Subsidiaries
of any real or tangible personal property, which property has been or is to be sold or transferred by the Parent Guarantor or such Restricted
Subsidiary to a third Person in contemplation of such leasing (or similar arrangement); provided that any leasing arrangement
by any entity other than the Parent Guarantor or a Restricted Subsidiary shall not constitute a Sale and Lease-Back Transaction.
“Screened Affiliate” means
any Affiliate of a Holder or, if the Holder is DTC or DTC’s nominee, of a beneficial owner, (i) that makes investment decisions
independently from such Holder or beneficial owner and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that
has in place customary information screens between it and such Holder or beneficial owner and any other Affiliate of such Holder or beneficial
owner that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the Parent Guarantor or its
Subsidiaries, (iii) whose investment policies are not directed by such Holder or beneficial owner or any other Affiliate of such
Holder or beneficial owner that is acting in concert with such Holder in connection with its investment in the Notes and (iv) whose
investment decisions are not influenced by the investment decisions of such Holder or beneficial owner or any other Affiliate of such
Holder or beneficial owner that is acting in concert with such Holders or beneficial owners in connection with its investment in the
Notes.
“SEC” means the U.S. Securities
and Exchange Commission, or any successor thereto.
“Secured Indebtedness” means
any Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries secured by a Lien.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Securitization Assets” means
the accounts receivable, royalty or other revenue streams and other rights to payment and any other assets subject to a Qualified Securitization
Facility and the proceeds thereof.
“Securitization Facility” means
any of one or more receivables, factoring or securitization financing facilities as amended, supplemented, modified, extended, renewed,
restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties,
covenants, performance guaranties and indemnities made in connection with such facilities) to the Parent Guarantor or any of its Restricted
Subsidiaries (other than a Securitization Subsidiary) pursuant to which the Parent Guarantor or any of its Restricted Subsidiaries sells
or grants a security interest in its accounts receivable, payables or Securitization Assets or assets related thereto to either (a) a
Person that is not a Restricted Subsidiary or (b) a Securitization Subsidiary that in turn sells its accounts receivable, payable
or Securitization Assets or assets related thereto to a Person that is not a Restricted Subsidiary.
“Securitization Fees” means
distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection
with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with, any Qualified Securitization Facility.
“Securitization Subsidiary”
means any Subsidiary formed for the purpose of, and that solely engages only in, one or more Qualified Securitization Facilities and
other activities reasonably related thereto.
“Senior Indebtedness” means:
(a) all
Indebtedness of the Issuer or any Guarantor outstanding under the Senior Secured Credit Facilities and the Notes and related guarantees
(including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the
Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for
post-filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification
amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the
Issuer or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other
similar instruments;
(b) all
(x) Hedging Obligations (and guarantees thereof) and (y) obligations in respect of Bank Products (and guarantees thereof) owing
to a lender under the Senior Secured Credit Facilities or any Affiliate of such lender (or any Person that was a lender or an Affiliate
of such lender at the time the applicable agreement giving rise to such Hedging Obligation was entered into); provided that such
Hedging Obligations and obligations in respect of Bank Products, as the case may be, are permitted to be incurred under the terms of
this Indenture;
(c) any
other Indebtedness of the Issuer or any Guarantor permitted to be incurred under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related Guarantee;
and
(d) all
Obligations with respect to the items listed in the preceding clauses (a), (b) and (c); provided that Senior Indebtedness
shall not include:
(i) any
obligation of such Person to the Parent Guarantor or any of its Subsidiaries;
(ii) any
liability for federal, state, local or other taxes owed or owing by such Person;
(iii) any
accounts payable or other liability to trade creditors arising in the ordinary course of business;
(iv) any
Indebtedness or other Obligation of such Person which is subordinate or junior in right of payment to any other Indebtedness or other
Obligation of such Person; or
(v) that
portion of any Indebtedness which at the time of incurrence is incurred in violation of this Indenture.
“Senior Secured Credit Facilities”
means that certain Credit Agreement, dated July 3, 2014, by and among the Issuer, Credit Suisse AG, as administrative agent, and
the lenders and other parties party thereto as amended by Amendment No. 1 dated as of April 7, 2017, as amended by Amendment
No. 2 dated as of November 22, 2017, as amended by Amendment No. 3 dated as of January 24, 2018, as amended by Amendment
No. 4 dated as of February 24, 2021, as amended by Amendment No. 5 dated as of November 18, 2021, as amended by Amendment
No. 6 dated as of November 16, 2022, as amended by Amendment No. 7 dated as of March 1, 2023, as amended by Amendment
No. 8 dated as of October 10, 2023 and as amended by Amendment No. 9 dated on or around June 4, 2024, including,
in each case, any amendments, supplements, modifications, extensions, renewals, restatements, refundings, refinancings or replacements
thereof and any one or more indentures, agreements, credit facilities or commercial paper facilities with banks or other institutional
lenders or investors that replace, refund, supplement or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture or agreement that increases the amount borrowable
thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.09
hereof) or adds the Parent Guarantor or any Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the
same or any other agent, trustee, lender or group of lenders or holders.
“Short Derivative Instrument”
means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which
generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or
the payment or delivery obligations under which generally decrease, with negative changes to the Performance References.
“Significant Subsidiary” means
any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02, clauses
(w)(1) or (2) of Regulation S-X promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date.
“Similar Business” means (a) any
business conducted or proposed to be conducted by the Parent Guarantor or any of its Restricted Subsidiaries (or any Subsidiary thereof)
on the Issue Date, and any reasonable extension thereof, or (b) any business or other activities that are reasonably similar, ancillary,
incidental, complementary, synergistic or related to, or a reasonable extension, development or expansion of, the businesses in which
the Parent Guarantor and its Restricted Subsidiaries (or any Subsidiary thereof) are engaged or propose to be engaged on the Issue Date.
“Subordinated Indebtedness”
means, with respect to the Notes,
(a) any
Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes; and
(b) any
Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Guarantee of such entity of the Notes.
“Subsidiary” means, with respect
to any Person:
(a) any
corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity)
of which more than 50.0% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; and
(b) any
partnership, joint venture, limited liability company or similar entity of which:
(i) more
than 50.0% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests,
as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person
or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise; and
(ii) such
Person or any Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
For the avoidance of doubt, unless otherwise specified,
any entity that is owned at a 50.0% or less level (as described above) shall not be a “Subsidiary” for any purpose
under this Indenture, regardless of whether such entity is consolidated on the Parent Guarantor’s or any Restricted Subsidiary’s
financial statements. Unless the context otherwise requires, any references to Subsidiary refer to a Subsidiary of the Parent Guarantor.
“Subsidiary
Guarantor” means each Restricted Subsidiary of the Parent Guarantor, if any, that Guarantees the Notes in accordance
with the terms of this Indenture; provided that upon release or discharge of such Restricted Subsidiary from its Guarantee in
accordance with this Indenture, such Restricted Subsidiary ceases to be a Subsidiary Guarantor.
“Support and Services Agreement”
means the management services or similar agreements or the management services provisions contained in an investor rights agreement or
other equityholders’ agreement, as the case may be, between one or more of the Investors or certain of the management companies
associated with one or more of the Investors or their advisors or Affiliates, if applicable, and the Issuer (and/or its direct or indirect
parent companies or Subsidiaries), as in effect from time to time.
“Taxes”
shall mean all present and future taxes, levies, duties, imposts, assessments or withholdings (including backup withholding) or
similar charges imposed by any governmental authority or taxing authority including interest and penalties with respect thereto.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
“Trustee” means U.S. Bank Trust
Company, National Association, as trustee, until a successor replaces it in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
“Uniform Commercial Code” means
the Uniform Commercial Code or any successor provision thereof as the same may from time to time be in effect in the State of New York.
References in this Indenture to specific sections of the Uniform Commercial Code are based on the Uniform Commercial Code as in effect
in the State of New York on the Issue Date. In the event such Uniform Commercial Code is amended, such section reference shall be deemed
to be references to the comparable section in such amended Uniform Commercial Code.
“Unrestricted Definitive Notes”
means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend.
“Unrestricted Global Notes”
means a permanent Global Note, substantially in the form of Exhibit A hereto, bearing the Global Note Legend and that has
the “Schedule of Exchanges of Interests in the Global Note” attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing Notes that do not bear the Private Placement Legend.
“Unrestricted Subsidiary” means:
(a) any
Subsidiary of the Parent Guarantor which at the time of determination is an Unrestricted Subsidiary (as designated by the Parent Guarantor,
as provided below); and
(b) any
Subsidiary of an Unrestricted Subsidiary.
The Parent Guarantor or the Issuer may designate
any Subsidiary of the Parent Guarantor (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary; provided that either (a) the Subsidiary to be so designated has total consolidated assets of $1,000
or less or (b) if the Subsidiary to be so designated has total consolidated assets in excess of $1,000, such designation complies
with Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness
of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Parent Guarantor as of such date and, if such Indebtedness
is not permitted to be incurred as of such date under Section 4.09 hereof, the Parent Guarantor will be in Default of Section 4.09
hereof.
The Parent Guarantor or the Issuer may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation,
(i) no Default shall have occurred and be continuing and (ii) (x) any outstanding Indebtedness of such Unrestricted Subsidiary
would be permitted to be incurred by a Restricted Subsidiary under Section 4.09 hereof (including pursuant to clause (xiv) of
Section 4.09(b) hereof treating such redesignation as an acquisition for the purpose of such clause) and shall be deemed
to be incurred thereunder and (y) all Liens encumbering the assets of such Unrestricted Subsidiary would be permitted to be incurred
by a Restricted Subsidiary under Section 4.12 hereof and shall be deemed to be incurred thereunder, in each case calculated
on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period.
Any such designation by the Parent Guarantor or
the Issuer shall be notified by the Parent Guarantor or the Issuer to the Trustee by promptly delivering to the Trustee a copy of the
resolution of the Board of the Parent Guarantor, the Issuer or any direct or indirect parent of the Parent Guarantor giving effect to
such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
“U.S. Dollar Equivalent” means
with respect to any monetary amount in a currency other than U.S. dollars, at any time for determination thereof, the amount of U.S.
dollars obtained by converting such foreign currency involved in such computation into U.S. dollars at the spot rate for the purchase
of U.S. dollars with the applicable foreign currency as published in The Wall Street Journal in the “Exchange Rates”
column under the heading “Currency Trading” on the date two business days prior to such determination.
“U.S. Government Securities”
means securities that are:
(a) direct
obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
(b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such
U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest
on the U.S. Government Securities evidenced by such depository receipt.
“U.S. Person” means a U.S.
person as defined in Rule 902(k) under the Securities Act.
“Voting Stock” of any Person
as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of such Person.
“Weighted Average Life to Maturity”
means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained
by dividing:
(a) the
sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment
of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount
of such payment; by
(b) the
sum of all such payments;
provided
that for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being extended, replaced,
refunded, refinanced, renewed or defeased (the “Applicable Indebtedness”), the effects of any amortization or prepayments
made on such Applicable Indebtedness prior to the date of the applicable extension, replacement, refunding, refinancing, renewal or defeasance
shall be disregarded.
“Wholly Owned Subsidiary” of
any Person means a Subsidiary of such Person, 100% of the outstanding Voting Stock of which (other than directors’ qualifying shares
and shares issued to foreign nationals as required by applicable law) shall at the time be owned by such Person and/or by one or more
Wholly Owned Subsidiaries of such Person.
Section 1.02. Other
Definitions.
Term | |
Defined
in Section | |
“Acceptable Commitment” | |
| 4.10(b) | |
“Advance Offer” | |
| 4.10(c) | |
“Advance Portion” | |
| 4.10(c) | |
“Affiliate Transaction” | |
| 4.11(a) | |
“Alternate Offer” | |
| 4.14(k) | |
“Applicable AML Law” | |
| 12.15 | |
“Applicable Premium Deficit” | |
| 8.04(a) | |
“Asset Sale Offer” | |
| 4.10(c) | |
“Authentication Agent” | |
| 2.02 | |
“Authentication Order” | |
| 2.02 | |
“Change of Control Offer” | |
| 4.14 | |
“Change of Control Payment” | |
| 4.14 | |
“Change of Control Payment Date” | |
| 4.14(b) | |
“Covenant Defeasance” | |
| 8.03 | |
“Covenant Suspension Event” | |
| 4.16(a) | |
“Declined Proceeds” | |
| 4.10(c) | |
“Directing Holder” | |
| 6.02 | |
“DTC” | |
| 2.03 | |
“ERISA” | |
| 2.06(h) | |
“Event of Default” | |
| 6.01(a) | |
“Excess Proceeds” | |
| 4.10(c) | |
“Excess Proceeds Threshold” | |
| 4.10(c) | |
“Increased Amount” | |
| 4.12 | |
“incur” and “incurrence” | |
| 4.09(a) | |
“LCT Election” | |
| 1.06 | |
“LCT Test Date” | |
| 1.06 | |
“Legal Defeasance” | |
| 8.02 | |
“Noteholder Direction” | |
| 6.02 | |
“Note Register” | |
| 2.03 | |
“Non-Guarantor Disposition” | |
| 4.10(b) | |
“Offer Amount” | |
| 3.08(b) | |
“Offer Period” | |
| 3.08(b) | |
“Pari Passu Indebtedness” | |
| 4.10(c) | |
“Paying Agent” | |
| 2.03 | |
“Position Representation” | |
| 6.02 | |
“Purchase Date” | |
| 3.08(b) | |
“Redemption Date” | |
| 3.01 | |
“Refinancing Indebtedness” | |
| 4.09(b)(xiii) | |
“Refunding Capital Stock” | |
| 4.07(b)(ii) | |
“Registrar” | |
| 2.03 | |
Term | |
Defined
in Section | |
“Reserved Indebtedness Amount” | |
| 4.09(c)(vi) | |
“Restricted Payments” | |
| 4.07(a) | |
“Reversion Date” | |
| 4.16(c) | |
“Second Commitment” | |
| 4.10(b) | |
“Subject Lien” | |
| 4.12 | |
“Successor Company” | |
| 5.01(a) | |
“Successor Person” | |
| 5.01(d) | |
“Suspended Covenants” | |
| 4.16(a) | |
“Suspension Date” | |
| 4.16(a) | |
“Suspension Period” | |
| 4.16(c) | |
“Transfer Agent” | |
| 2.03 | |
“Treasury Capital Stock” | |
| 4.07(b)(ii) | |
“Verification Covenant” | |
| 6.02 | |
Section 1.03. Rules of
Construction. Unless the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) the
words “including,” “includes” and similar words shall be deemed to be followed by “without limitation”;
(e) words
in the singular include the plural, and in the plural include the singular;
(f) “shall”
and “will” shall be interpreted to express a command;
(g) provisions
apply to successive events and transactions;
(h) references
to sections of, or rules under, the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time;
(i) unless
the context otherwise requires, any reference to an “Article,” “Section” or “clause” refers to an
Article, Section or clause, as the case may be, of this Indenture;
(j) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not any particular Article, Section, clause or other subdivision;
(k) the
principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the Issuer dated such date prepared in accordance with GAAP;
(l) words
used herein implying any gender shall apply to both genders;
(m) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including”; the words “to” and “until” each mean “to but excluding” and the word “through”
means “to and including”; and
(n) the
principal amount of any Preferred Stock at any time shall be (i) the maximum liquidation value of such Preferred Stock at such time
or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock at such time, whichever
is greater.
Section 1.04. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Proof of execution of any such
instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of
this Indenture and (subject to Section 7.01 hereof) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Section 1.04.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.
The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be
proved in any other manner that the Trustee deems sufficient.
(c) The
ownership of Notes shall be proved by the Note Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon, whether or not notation
of such action is made upon such Note.
(e) The
Issuer may set a record date for purposes of determining the identity of Holders entitled to give any request, demand, authorization,
direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted
to be given or taken by Holders. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made
by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later
of 10 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior
to such solicitation.
(f) Without
limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all
or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different
parts of such principal amount pursuant to this Section 1.04(f) shall have the same effect as if given or taken
by separate Holders of each such different part.
(g) Without
limiting the generality of the foregoing, a Holder, including DTC, that is a Holder of a Global Note, may make, give or take, by a proxy
or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided
in this Indenture to be made, given or taken by Holders, and any Person that is a Holder of a Global Note, including DTC, may provide
its proxy or proxies to the beneficial owners of interests in any such Global Note, through such Depositary’s standing instructions
and customary practices.
(h) The
Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held
by DTC entitled under the procedures of such Depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall
be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or
not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or
other action shall be valid or effective if made, given or taken more than 120 days after such record date.
Section 1.05. Timing
of Payment. Notwithstanding anything herein to the contrary, if the date on which any payment is to be made pursuant to this Indenture
or the Notes is not a Business Day, the payment otherwise payable on such date shall be payable on the next succeeding Business Day with
the same force and effect as if made on such scheduled date and (provided such payment is made on such succeeding Business Day)
no interest shall accrue on the amount of such payment from and after such scheduled date to the time of such payment on such next succeeding
Business Day and the amount of any such payment that is an interest payment will reflect accrual only through the original payment date
and not through the next succeeding Business Day.
Section 1.06. Limited
Condition Transactions. When calculating the availability under any basket, test or ratio under this Indenture or compliance with
any provision of this Indenture in connection with any Limited Condition Transaction and any actions or transactions related thereto
(including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness, Disqualified Stock or Preferred Stock
and the use of proceeds thereof, the incurrence or assumption of Liens, repayments, Restricted Payments, the designation of any Restricted
Subsidiaries or Unrestricted Subsidiaries, and Asset Sales or any disposition, issuance or other transaction excluded from the definition
of “Asset Sale”), in each case, at the option of the Parent Guarantor, any of its Restricted Subsidiaries, any direct or
indirect parent of the Parent Guarantor or any successor entity of any of the foregoing (including a third party) (the “Testing
Party,” and the election to exercise such option, an “LCT Election”), the date of determination for availability
under any such basket, test or ratio or whether any such action or transaction is permitted (or any requirement or condition therefor
is complied with or satisfied (including as to the absence of any continuing Default or Event of Default)) under this Indenture shall
be deemed to be the date (the “LCT Test Date”) either (a) the definitive agreements or letter of intent (or,
if applicable, a binding offer, or launch of a “certain funds” tender offer) for such Limited Condition Transaction are entered
into (or, if applicable, the date of delivery of a notice, declaration or making of a Restricted Payment or similar event), or (b) solely
in connection with an acquisition to which the United Kingdom City Code on Takeovers and Mergers or similar law or practices in other
jurisdictions apply, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer or similar announcement
or determination in another jurisdiction subject to similar laws in respect of a target of a Limited Condition Transaction or (c) any
date occurring after the occurrence of events described in either clause (a) or clause (b) and prior to the closing
of such Limited Condition Transaction, and, in each case, if, after giving pro forma effect to the Limited Condition Transaction and
any actions or transactions related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness,
Disqualified Stock or Preferred Stock and the use of proceeds thereof, the incurrence or assumption of Liens, repayments, Restricted
Payments, the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, and Asset Sales or any disposition, issuance or
other transaction excluded from the definition of “Asset Sale”) and any related pro forma adjustments (disregarding for the
purposes of such pro forma calculation any borrowing under a revolving credit, working capital or letter of credit facility), as if they
had occurred at the beginning of the most recently ended four full fiscal quarters ending prior to the LCT Test Date for which internal
consolidated financial statements of the Parent Guarantor are available, the Parent Guarantor or any of its Restricted Subsidiaries would
have been permitted to take such actions or consummate such transactions on the relevant LCT Test Date in compliance with such ratio,
test or basket (and any related requirements and conditions), such ratio, test or basket (and any related requirements and conditions)
shall be deemed to have been complied with (or satisfied) for all purposes (in the case of Indebtedness, for example, whether such Indebtedness
is committed, issued or incurred at the LCT Test Date or at any time thereafter); provided that (a) if financial statements
for one or more subsequent fiscal quarters shall have become available, the Testing Party may elect, in its sole discretion, to re-determine
all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter
be deemed to be the applicable LCT Test Date for purposes of such ratios, tests or baskets, (b) except as contemplated in the foregoing
clause (a), compliance with such ratios, tests or baskets (and any related requirements and conditions) shall not be determined or tested
at any time after the applicable LCT Test Date for such Limited Condition Transaction and any actions or transactions related thereto
(including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness, Disqualified Stock or Preferred Stock
and the use of proceeds thereof, the incurrence or assumption of Liens, repayments, Restricted Payments, the designation of any Restricted
Subsidiaries or Unrestricted Subsidiaries, and Asset Sales or any disposition, issuance or other transaction excluded from the definition
of “Asset Sale”) and (c) Consolidated Interest Expense for purposes of the Fixed Charge Coverage Ratio will be calculated
using an assumed interest rate based on the indicative interest margin contained in any financing commitment documentation with respect
to such Indebtedness or, if no such indicative interest margin exists, as reasonably determined by the Testing Party in good faith.
For the avoidance of doubt, if the Testing Party
has made an LCT Election, (1) if any of the ratios, tests or baskets for which compliance was determined or tested as of the
LCT Test Date would at any time after the LCT Test Date have been exceeded or otherwise failed to have been complied with, including
as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in exchange rates or EBITDA or total assets
of the Parent Guarantor or the Person subject to such Limited Condition Transaction at or prior to the consummation of the relevant transaction
or action, such baskets, tests or ratios will not be deemed to have been exceeded or failed to have been complied with as a result of
such fluctuations; provided that if such ratios, tests or baskets improve as a result of such fluctuations, such improved ratios,
tests and/or baskets may be utilized; (2) if any related requirements and conditions (including as to the absence of any continuing
Default or Event of Default) for which compliance or satisfaction was determined or tested as of the LCT Test Date would at any time
after the LCT Test Date not have been complied with or satisfied (including due to the occurrence or continuation of a Default or an
Event of Default), such requirements and conditions will not be deemed to have been failed to be complied with or satisfied (and such
Default or Event of Default shall be deemed not to have occurred or be continuing); and (3) in calculating the availability under
any ratio, test or basket in connection with any action or transaction unrelated to such Limited Condition Transaction (including without
limitation a separate Limited Condition Transaction) following the relevant LCT Test Date and prior to the earlier of the date on which
such Limited Condition Transaction is consummated or the date that the definitive agreement, the date of notice or offer or date for
redemption, purchase or repayment specified in a notice for such Limited Condition Transaction is terminated, expires or passes, as applicable,
without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be determined or tested giving pro forma
effect to such Limited Condition Transaction and any actions or transactions related thereto.
In connection with any action being taken in connection
with a Limited Condition Transaction, for purposes of determining compliance with any provision of this Indenture which requires that
no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such
action, as applicable, such condition shall, at the option of the Testing Party, be deemed satisfied, so long as no Default, Event of
Default or specified Event of Default, as applicable, exists on the date of the definitive agreement, the date of notice or offer or
date for redemption, purchase or repayment for such Limited Condition Transaction, as applicable. For the avoidance of doubt, if the
Testing Party has exercised an LCT Election, and any Default, Event of Default or specified Event of Default occurs following the date
the definitive agreements (or, if applicable, the date of delivery of a notice, declaration or making of a Restricted Payment or similar
event) for the applicable Limited Condition Transaction were entered into and prior to the consummation of such Limited Condition Transaction,
any such Default, Event of Default or specified Event of Default shall be deemed to not have occurred or be continuing for purposes of
determining whether any action being taken in connection with such Limited Condition Transaction is permitted under this Indenture.
Section 1.07. Certain
Compliance Calculations. Notwithstanding anything to the contrary herein, in the event an item of Indebtedness, Disqualified Stock
or Preferred Stock (or any portion thereof) is incurred, assumed or issued, any Lien is incurred or assumed, any Restricted Payment is
made or other transaction is undertaken (including a Limited Condition Transaction) in reliance on a ratio basket based on the Fixed
Charge Coverage Ratio, Consolidated First Lien Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio or other
ratio-based test, such ratio(s) shall be calculated with respect to such incurrence, issuance or other transaction without giving
effect to amounts being utilized under any other non-ratio-based basket substantially concurrently. Each item of Indebtedness, Disqualified
Stock or Preferred Stock that is incurred, assumed or issued, each Lien incurred and each other transaction undertaken will be deemed
to have been incurred, assumed, issued or taken first, to the extent available, pursuant to the relevant Fixed Charge Coverage Ratio,
Consolidated First Lien Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio test. For the avoidance of doubt,
when testing the availability under a ratio basket for purposes of making a Restricted Payment, Indebtedness (or any portion thereof)
incurred, assumed or issued the proceeds of which are being utilized to make a Restricted Payment utilizing a non-ratio basket shall
not be given effect.
Notwithstanding anything to the contrary herein,
in the event an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) is committed, incurred, assumed
or issued, any Lien is committed, incurred, assumed or issued, any Restricted Payment is made or any other transaction is undertaken
(including a Limited Condition Transaction) in reliance on a ratio basket based on the Fixed Charge Coverage Ratio, Consolidated First
Lien Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio or other ratio-based test, such ratio(s) shall
be calculated without regard to the commitment or incurrence of any Indebtedness under any revolving facility or letter of credit facility
(1) immediately prior to or in connection therewith or (2) used to finance working capital needs of the Parent Guarantor and
its Restricted Subsidiaries (as reasonably determined by the Parent Guarantor or the Issuer).
If a proposed action, matter, transaction or amount
(or a portion thereof) meets the criteria of more than one applicable basket, permission or threshold under this Indenture, the Issuer
shall be entitled to divide or classify or later divide or reclassify (based on circumstances existing on the date of such reclassification)
such action, matter, transaction or amount (or a portion thereof) between such baskets, permissions or thresholds as it shall elect from
time to time.
Any calculation, test or measure that is determined
with reference to the Parent Guarantor’s financial statements (including, without limitation, EBITDA, Consolidated Interest Expense,
Consolidated Net Income, Consolidated First Lien Debt Ratio, Consolidated Secured Debt Ratio, Consolidated Total Debt Ratio, Fixed Charge
Coverage Ratio, Fixed Charges, and clause (B)(1) of Section 4.07(a) hereof) may be determined with reference to the
financial statements of a direct or indirect parent entity of the Parent Guarantor instead, so long as such calculation, test or measure
would not differ by more than an immaterial amount when using the financial statements of such direct or indirect parent entity of the
Parent Guarantor as compared to if such calculation, test or measure were made using the Parent Guarantor’s financial statements
(as determined in good faith by the Parent Guarantor or the Issuer).
Any ratios, tests or baskets required to be satisfied
in order for a specific action to be permitted under this Indenture 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).
If the Parent Guarantor or any Restricted Subsidiary
takes an action which at the time of the taking of such action would in the good faith determination of the Parent Guarantor be permitted
under the applicable provisions of this Indenture based on the financial statements available at such time, such action shall be deemed
to have been made in compliance with this Indenture notwithstanding any subsequent adjustments, modifications or restatements made in
good faith to such financial statements affecting Consolidated Net Income, EBITDA or other applicable financial metric.
ARTICLE 2
The Notes
Section 2.01. Form and
Dating; Terms.
(a) General.
The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date
of its authentication. The Notes shall be issued in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
(b) Global
Notes. Notes issued in global form shall be substantially in the form of Exhibit A hereto, including the Global Note
Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto. Notes issued in definitive
form shall be substantially in the form of Exhibit A hereto, but without the Global Note Legend thereon and without the “Schedule
of Exchanges of Interests in the Global Note” attached thereto. Each Global Note shall represent such of the outstanding Notes
as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide
that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary
Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary
Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as Custodian for
the Depositary and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding
on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
Following the termination of the applicable Restricted
Period, the Regulation S Temporary Global Note Legend shall be deemed removed from the Regulation S Temporary Global Note, following
which temporary beneficial interests in the Regulation S Temporary Global Note shall automatically become beneficial interests in the
Regulation S Permanent Global Note pursuant to the Applicable Procedures.
The aggregate principal amount of a Regulation
S Temporary Global Note and a Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee and/or the Paying Agent and the Depositary or their respective nominees, as the case may be, in connection
with transfers of interest as hereinafter provided.
(d) Terms.
The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.
The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer, the Guarantors, the Agents and the Trustee,
by their execution and delivery of this Indenture, or a supplemental indenture to this Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the
Issuer pursuant to a Collateral Asset Sale Offer, an Asset Sale Offer or an Advance Offer, as the case may be, as provided in Section 4.10
hereof or a Change of Control Offer or Alternate Offer as provided in Section 4.14 hereof. The Notes shall not be redeemable,
other than as provided in Article 3 hereof.
Subject to compliance with Section 4.09
hereof, the Issuer may issue Additional Notes from time to time ranking pari passu with the Initial Notes without notice to or
consent of the Holders, and such Additional Notes shall be consolidated with and form a single class with the Initial Notes (except as
otherwise provided for herein) and shall have the same terms as to status, redemption or otherwise as the Initial Notes, except that
interest may accrue on the Additional Notes from their date of issuance (or such other date specified by the Issuer); provided,
however, that a separate CUSIP or ISIN will be issued for the Additional Notes, unless the Initial Notes and the Additional Notes
are treated as fungible for U.S. federal income tax purposes. Any additional Notes may be issued with the benefit of an indenture supplemental
to this Indenture.
(e) Euroclear
and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms
and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer
Handbook” of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held
by Participants through Euroclear or Clearstream.
Section 2.02. Execution
and Authentication. At least one Officer of the Issuer shall execute the Notes on behalf of the Issuer by manual, facsimile or electronic
(including “.pdf”) signature.
If an Officer of the Issuer whose signature is
on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A hereto
by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered
under this Indenture.
On the Issue Date, the Trustee shall, upon receipt
of an Issuer’s Order (an “Authentication Order”), authenticate and deliver the Initial Notes in the aggregate
principal amount or amounts specified in such Authentication Order. In addition, at any time, from time to time, the Trustee shall, upon
receipt of an Authentication Order, authenticate and deliver any Additional Notes for an aggregate principal amount specified in such
Authentication Order for such Additional Notes issued or increased hereunder.
The Trustee may appoint an authenticating agent
(an “Authentication Agent”) acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An Authentication Agent has the same rights as an Agent to deal with Holders or an Affiliate of the Issuer.
Section 2.03. Registrars,
Transfer Agents and Paying Agents. The Issuer shall maintain (i) one or more registrars where the Notes may be presented for
registration (each, a “Registrar”), which shall be U.S. Bank Trust Company, National Association as of the date of
this Indenture, (ii) one or more offices or agencies where the Notes may be presented for transfer or for exchange (each, a “Transfer
Agent”), which shall be U.S. Bank Trust Company, National Association as of the date of this Indenture, and (iii) one
or more offices or agencies where the Notes may be presented for payment (each, a “Paying Agent”), which shall be
U.S. Bank Trust Company, National Association as of the date of this Indenture. The Registrar shall keep a register of the Notes (“Note
Register”), and of their transfer and exchange and keep such Note Register in accordance with the rules and procedures
of DTC. The registered Holder of a Note will be treated as the owner of such Note for all purposes and only registered Holders shall
have rights under this Indenture and the Notes. The Issuer may appoint one or more co-registrars, one or more co-transfer agents and
one or more additional paying agents. The term “Registrar” includes any co-registrar, the term “Transfer
Agent” includes any co-transfer agent and the term “Paying Agent” includes any additional paying agents.
The Issuer may change any Paying Agent, Transfer Agent or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee
in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity
as Registrar, Transfer Agent or Paying Agent, the Trustee or an affiliate of the Trustee shall act as such. The Parent Guarantor or any
of its Subsidiaries may act as Paying Agent, Transfer Agent or Registrar.
The Issuer initially appoints The Depository Trust
Company and its nominees and successors (“DTC”) to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act
as the Registrar for the Notes and the Paying Agent and Transfer Agent for the Notes and to act as Custodian with respect to the Global
Notes.
If any Notes are listed on an exchange and the
rules of such exchange so require, the Issuer will satisfy any requirement of such exchange as to paying agents, registrars and
transfer agents and will comply with any notice requirements required under such exchange in connection with any change of paying agent,
registrar or transfer agent.
Section 2.04. Paying
Agent to Hold Money in Trust. The Issuer shall require any Paying Agent with respect to the Notes other than the Trustee to agree
in writing that such Paying Agent shall hold in trust for the benefit of Holders of the Notes or the Trustee all money held by such Paying
Agent for the payment of principal and premium, if any, or interest on the Notes, and will notify the Trustee in writing of any default
by the Issuer in making any such payment. While any such default continues, the Trustee may require the Paying Agent with respect to
the Notes (other than the Trustee) to pay all money held by it to the Trustee. The Issuer at any time may require the Paying Agent with
respect to the Notes (other than the Trustee) to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent with respect to the Notes (if other than the Parent Guarantor or any of its Subsidiaries or the Trustee) shall have no further
liability for the money. If Parent Guarantor or any of its Subsidiaries acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating
to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Holder
Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names
and addresses of all Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least five Business Days
before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of the Holders.
Section 2.06. Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes. Except as otherwise set forth in this Section 2.06, a Global Note may be transferred,
in whole and not in part, only to another nominee of the Depositary or to a successor thereto or a nominee of such successor thereto.
A beneficial interest in a Global Note may not be exchanged for a Definitive Note unless, and, if applicable, subject to the limitation
on issuance of Definitive Notes set forth in Section 2.06(d)(ii), (i) the Depositary (x) notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Global Note or (y) has ceased to be a clearing agency registered
under the Exchange Act, and, in either case, a successor Depositary is not appointed by the Issuer within 120 days, (ii) the Issuer,
at its option, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes (although Regulation S Temporary
Global Notes may not be exchanged for Definitive Notes prior to (A) the expiration of the applicable Restricted Period and (B) the
receipt by the Registrar of any certification of beneficial ownership required pursuant to Rule 903(b)(3)(ii)(B)), (iii) upon
the request of a Holder if there shall have occurred and be continuing an Event of Default with respect to the Notes or (iv) the
Trustee has received a written request by or on behalf of the Depositary to issue Definitive Notes. Upon the occurrence of any of the
events described in clause (i), (ii), (iii) or (iv) above, Definitive Notes
delivered in exchange for any Global Note or beneficial interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures). Global Notes also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections
2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except
for Definitive Notes issued subsequent to any of the events described in clause (i), (ii), (iii) or
(iv) above and pursuant to Section 2.06(d) hereof. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); provided, however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.06(c) or (d) hereof.
(b) [Reserved].
(c) Transfer
and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall
be effected through the Depositary in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required
by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i),
(ii), (iii) or (iv) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions
set forth in the applicable Private Placement Legend; provided that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person other than pursuant to Rule 144A. Beneficial interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in a Unrestricted Global Note. No written orders or instructions shall
be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(c)(i).
(ii) All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(c)(i) hereof, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance
with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in
no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in a Regulation S Temporary Global Note
prior to (x) the expiration of the applicable Restricted Period therefor and (y) the receipt by the Registrar of any certification
of beneficial ownership required pursuant to Rule 903(b)(3)(ii)(B). Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(i) hereof.
(iii) Transfer
of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(c)(ii) hereof, as applicable, and the Registrar receives the following:
(A) if
the transferee will take delivery in the form of a beneficial interest in a 144A Global Note, then the transferor must deliver a certificate
in the form of Exhibit B including the certifications in item (1) thereof; or
(B) if
the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then the transferor must deliver
a certificate in the form of Exhibit B including the certifications in item (2) thereof.
(iv) Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial
interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note
or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange
or transfer complies with the requirements of Section 2.06(c)(ii) hereof, and:
(A) such
Notes are sold or exchanged pursuant to an effective registration statement under the Securities Act; or
(B) the
Registrar receives the following:
(1) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit C including the certifications
in item (1)(a) thereof; or
(2) if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form
of Exhibit B including the certifications in item (4) thereof;
and, in each such case set forth in this clause (B), if the
Issuer so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuer to the
effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to clause
(A) or (B) above at a time when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to clause
(A) or (B) above.
Beneficial interests in an Unrestricted Global
Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted
Global Note.
(d) Transfer
or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then, in the case of the Restricted Definitive Notes, upon the
occurrence of any of the events described in clause (i), (ii), (iii) or (iv) of Section 2.06(a) hereof
and receipt by the Registrar of the following documentation:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive
Note, a certificate from such holder substantially in the form of Exhibit C including the certifications in item (2)(a) thereof;
(B) if
such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form of Exhibit B
including the certifications in item (1) thereof;
(C) if
such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904,
a certificate substantially in the form of Exhibit B including the certifications in item (2) thereof;
(D) if
such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate substantially in the form of Exhibit B including the certifications in item (3)(a) thereof;
(E) if
such beneficial interest is being transferred to the Parent Guarantor or any of its Subsidiaries, a certificate substantially in the form
of Exhibit B including the certifications in item (3)(b) thereof; or
(F) if
such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
substantially in the form of Exhibit B including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(i) hereof, and the Issuer shall execute and, upon receipt
of an Authentication Order, the Trustee shall authenticate and send to the Person designated in the instructions a Definitive Note in
the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall send such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(d)(i) (except
transfers pursuant to clause (F) above) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial
Interests in Regulation S Temporary Global Note to Definitive Notes. Notwithstanding Sections 2.06(d)(i)(A) and
(C) hereof, a beneficial interest in the Regulation S Temporary Global Note
may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior
to (A) the expiration of the applicable Restricted Period therefor and (B) the receipt by the Registrar of any certifications
of beneficial ownership required pursuant to Rule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transfer pursuant
to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the events described in clause (i),
(ii), (iii) or (iv) of Section 2.06(a) hereof and if the Registrar
receives the following:
(A) if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder substantially in the form of Exhibit C including the certifications in item (1)(b) thereof;
or
(B) if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder substantially in the form of Exhibit B
including the certifications in item (4) thereof;
and, in each such case set forth in this subclause (iii), if the Issuer
so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuer to the effect
that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(iv) Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon the occurrence of any of the events described in clause (i), (ii),
(iii) or (iv) of Section 2.06(a) hereof and satisfaction of
the conditions set forth in Section 2.06(c)(v) hereof, the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(i) hereof,
and the Issuer shall execute and, upon receipt of an Authentication Order, the Trustee shall authenticate and send to the Person designated
in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(d)(iv) shall be registered in such name
or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through
instructions from or through the Depositary and the Participant or Indirect Participant. The Trustee shall send such Definitive Notes
to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(d)(iv) shall not bear the Private Placement Legend.
(e) Transfer
and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange
such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:
(A) if
the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder substantially in the form of Exhibit C including the certifications in item (2)(b) thereof;
(B) if
such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate substantially in the form
of Exhibit B including the certifications in item (1) thereof;
(C) if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate substantially in the form of Exhibit B including the certifications in item (2) thereof;
(D) if
such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate substantially in the form of Exhibit B including the certifications in item
(3)(a) thereof;
(E) if
such Restricted Definitive Note is being transferred to the Parent Guarantor or any of its Subsidiaries, a certificate substantially in
the form of Exhibit B including the certifications in item (3)(b) thereof; or
(F) if
such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
substantially in the form of Exhibit B including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note and increase
or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global Note,
in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause (C) above, the applicable Regulation
S Global Note.
(ii) Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
(A) if
the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder substantially in the form of Exhibit C including the certifications in item (1)(c) thereof; or
(B) if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder substantially in the form of Exhibit B including
the certifications in item (4) thereof;
and, in each such case set forth in this subsection (ii),
if the Issuer so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Issuer
to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
Upon satisfaction of the applicable conditions
of this Section 2.06(e)(ii), the Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer,
the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to Section 2.06(e)(ii) or (iii) above at a time when an Unrestricted
Global Note has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount
of Definitive Notes so transferred.
(f) Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance
with the provisions of this Section 2.06(f), the Registrar shall register the transfer or exchange of Definitive Notes.
Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes
duly endorsed or accompanied by a written instruction of transfer or exchange in form satisfactory to the Registrar duly executed by such
Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(f):
(i) Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
(A) if
the transfer will be made to a QIB in accordance with Rule 144A, then the transferor must deliver a certificate substantially in
the form of Exhibit B including the certifications in item (1) thereof;
(B) if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B
including the certifications in item (2) thereof; or
(C) if
the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B including the certifications required by item (3) thereof, if applicable.
(ii) Restricted
Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted
Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the
Registrar receives the following:
(A) if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder substantially in the form of Exhibit C including the certifications in item (1)(d) thereof; or
(B) if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder substantially in the form of Exhibit B, including the certifications
in item (4) thereof;
and, in each such case set forth in this subsection (ii),
if the Issuer so requests, an Opinion of Counsel in form reasonably acceptable to the Issuer to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the Securities Act.
(iii) Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who
takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(g) [Reserved].
(h) Legends.
The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture:
(i) Private
Placement Legend.
(A) Except
as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
“THE
NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES
LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION
AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”) OR (C) IT IS AN
AFFILIATE OF THE ISSUER, (2) AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER SUCH NOTE ONLY (A) TO THE PARENT GUARANTOR
OR ANY SUBSIDIARY OR DIRECT OR INDIRECT PARENT COMPANY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A TO A PERSON IT REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
RULE 904 UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUER’S OR THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.”
Except as permitted by subparagraph (B) below,
each Global Note and Definitive Note issued in a transaction exempt from registration pursuant to Regulation S shall also bear the legend
in substantially the following form:
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION
S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT IN COMPLIANCE WITH RULE 144A (“RULE
144A”) UNDER THE SECURITIES ACT (SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A) TO A PERSON THE HOLDER HEREOF
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) (A “QIB”) THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB, IN EACH CASE TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
UPON RULE 144A, AND UPON DELIVERY OF THE CERTIFICATIONS REQUIRED BY THE INDENTURE REFERRED TO HEREIN.”
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (c)(iv), (d)(iii), (d)(iv), (e)(ii), (e)(iii), (f)(ii) or
(f)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global
Note Legend. Each Global Note shall bear a legend in substantially the following form (with appropriate changes in the last sentence
of the first paragraph if DTC is not the Depositary):
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06(i) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL
BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS
SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975
OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S.
OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE
UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION
AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”
(iii) Regulation
S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN).”
(i) Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive
Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be
returned to or retained and cancelled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee, or by the Depositary at the direction
of the Trustee, to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and
an endorsement shall be made on such Global Note by the Trustee, or by the Depositary at the direction of the Trustee, to reflect such
increase.
(j) General
Provisions Relating to Transfers and Exchanges.
(i) To
permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section 2.02
hereof or at the Registrar’s request.
(ii) No
service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration
of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.07, 2.10,
3.06, 3.08, 4.10,
4.14 and 9.04 hereof).
(iii) Neither
the Registrar nor the Issuer shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the delivery of a notice of redemption of the Notes to be redeemed under Section 3.03
hereof and ending at the close of business on the day such notice of redemption is sent, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to
register the transfer or exchange of a Note between a Record Date and the next succeeding Interest Payment Date or (D) to register
the transfer or exchange of any Notes tendered (and not withdrawn) for repurchase in connection with a Change of Control Offer, an Alternate
Offer, an Asset Sale Offer or an Advance Offer.
(iv) Neither
the Registrar nor the Issuer shall be required to register the transfer or exchange of any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part; provided that new Notes will only be issued in minimum
denominations of $2,000 and in integral multiples of $1,000 in excess thereof.
(v) All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or exchange.
(vi) Prior
to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer shall deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium,
if any) and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice
to the contrary.
(vii) Upon
surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02
hereof, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(viii) At
the option of the Holder, subject to Section 2.06(a) hereof, Notes may
be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the
Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the replacement Global Notes and Definitive Notes to which the Holder making
the exchange is entitled in accordance with the provisions of Section 2.02
hereof.
(ix) All
certifications, certificates and Opinions of Counsel required to be submitted pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by facsimile or other electronic communication.
(x) None
of the Issuer, the Trustee or the Agents shall have any responsibility or obligation to any beneficial owner in a Global Note, a Participant,
an Indirect Participant or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any Participant,
with respect to any ownership interest in the Notes or with respect to the delivery to any Participant, Indirect Participant, beneficial
owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under
the Notes and this Indenture shall be given or made only to or upon the order of the registered holders (which shall be the Depositary
or its nominee). The rights of beneficial owners in a Global Note shall be exercised only through the Depositary, subject to the Applicable
Procedures. The Issuer, the Trustee and the Agents shall be entitled to rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to their respective members, participants and any beneficial owners. The Issuer, the Trustee
and the Agents shall be entitled to deal with the Depositary, and any nominee thereof, that is the registered holder of any Global Note
for all purposes of this Indenture relating to such Global Note (including the payment of principal, premium, if any, and interest, and
the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Note) as the sole
holder of such Global Note and shall have no obligations to the beneficial owners thereof. None of the Issuer, Trustee or Agents shall
have any responsibility or liability for any acts or omissions of the Depositary with respect to such Global Note, for the records of
any such depositary, including records in respect of beneficial ownership interests in respect of any such Global Note, for any transactions
between the Depositary and any Participant or between or among the Depositary, any such Participant and/or any holder or owner of a beneficial
interest in such Global Note, or for any transfers of beneficial interests in any such Global Note.
(xi) Notwithstanding
the foregoing, with respect to any Global Note, nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary in the case of Global
Notes (or its nominee), as a Holder, with respect to such Global Note or shall impair, as between such Depositary and owners of beneficial
interests in such Global Note, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee)
as Holder of such Global Note.
(xii) None
of the Trustee, the Registrar or the Transfer Agent shall have any duty to monitor the Issuer’s compliance with or have any responsibility
with respect to the Issuer’s compliance with any federal or state securities laws in connection with registrations of transfers
and exchanges of the Notes. The Trustee, the Registrar and the Transfer Agent shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer
of any interest in any Notes (including any transfers between or among the Depositary’s Participants or beneficial owners of interests
in any Global Note) other than to require delivery of such certificates and other documentation, as is expressly required by, and to do
so if and when expressly required by, the terms of this Indenture or the Notes and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(xiii) The
Issuer, the Trustee, the Registrar and the Transfer Agent reserve the right to require the delivery by any Holder or purchaser of a Note
of such legal opinions, certifications or other evidence as may reasonably be required in order to determine that the proposed transfer
of any Restricted Global Note or Restricted Definitive Note is being made in compliance with the Securities Act or the Exchange Act, or
rules or regulations adopted by the SEC from time to time thereunder, and applicable state securities laws.
Section 2.07. Replacement
Notes. If either (x) any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer, or (y) the Issuer and
the Trustee receive evidence to their satisfaction of the ownership and destruction, loss or theft of any Note, then the Issuer shall
issue and the Trustee, upon receipt of an Authentication Order and satisfaction of any other requirements of the Trustee, shall authenticate
a replacement Note. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of both (i) the Trustee to protect the Trustee and (ii) the Issuer to protect the Issuer, the Trustee, any Agent
and any Authentication Agent from any loss that any of them may suffer if a Note is replaced. The Issuer and the Trustee may charge the
Holder for their expenses in replacing a Note.
Every replacement Note is a contractual obligation
of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
Section 2.08. Outstanding
Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof
and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Issuer or a Guarantor or an Affiliate of the Issuer or a Guarantor holds the Note.
If a Note is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected
purchaser (as defined in Section 8-303 of the Uniform Commercial Code).
Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture shall not be deemed to be outstanding for purposes hereof.
If the principal amount of any Note is considered
paid under Section 4.01 hereof, such Note shall cease to be outstanding and interest thereon shall cease to accrue.
If a Paying Agent (other than the Issuer or a Guarantor
or an Affiliate of the Issuer or a Guarantor) holds, on a Redemption Date or maturity date, money sufficient to pay Notes (or portions
thereof) payable on that date, then on and after that date such Notes (or portions thereof) shall be deemed to be no longer outstanding
(including for accounting purposes) and shall cease to accrue interest on and after such date.
Section 2.09. Treasury
Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Issuer or by any Affiliate of the Issuer (other than a Debt Fund Affiliate; provided that the aggregate amount
of Notes held by any Debt Fund Affiliate shall be deemed to be not outstanding to the extent in excess of 49.9% of the amount required
for all purposes of calculating whether the Holders of a majority in principal amount of the outstanding Notes have taken any actions)
shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to such pledged Notes and that
the pledgee is not the Issuer or a Guarantor or any Affiliate of the Issuer or a Guarantor (other than a Debt Fund Affiliate; provided
that the aggregate amount of Notes held by any Debt Fund Affiliate shall be deemed to be not outstanding to the extent in excess
of 49.9% of the amount required for all purposes of calculating whether the Holders of a majority in principal amount of the outstanding
Notes have taken any actions).
Notwithstanding anything in this Indenture to the
contrary, for purposes of determining whether the Required Holders have (i) consented (or not consented) to any amendment, modification,
waiver, consent or other action with respect to any of the terms of this Indenture, the Notes or the Guarantees or any departure by the
Issuer or any Guarantor therefrom, unless the action in question affects any Affiliated Holder in a disproportionately adverse manner
than its effect on the other Holders, or any plan of reorganization pursuant to any applicable bankruptcy, insolvency or similar proceeding,
(ii) otherwise acted on any matter related to this Indenture, the Notes or the Guarantees or (iii) directed or required the
Trustee or any Holder to undertake any action (or refrain from taking any action) with respect to or under this Indenture, the Notes or
the Guarantees, no Affiliated Holder shall have any right to consent (or not consent), otherwise act or direct or require the Trustee
or any Holder to take (or refrain from taking) any such action and all Notes held by any Affiliated Holders shall be deemed to be not
outstanding for all purposes of calculating whether the Required Holders have taken any actions.
Notwithstanding anything in this Indenture to the
contrary, for purposes of determining whether the Required Holders have (i) consented (or not consented) to any amendment, modification,
waiver, consent or other action with respect to any of the terms of this Indenture, the Notes or the Guarantees or any departure by the
Issuer or any Guarantor therefrom, (ii) otherwise acted on any matter related to this Indenture, the Notes or the Guarantees or (iii) directed
or required the Trustee or any Holder to undertake any action (or refrain from taking any action) with respect to or under this Indenture,
the Notes or the Guarantees, all Notes held or beneficially owned by Debt Fund Affiliates may not account for more than 49.9% (pro rata
among such Debt Fund Affiliates) of the Notes of consenting Holders included in determining whether the Required Holders have consented
to any action pursuant to Article 9.
In connection with any action under this Indenture,
the Notes or the Guarantees that requires a determination of whether the Required Holders or any of the Holders, as applicable, have consented
to such action or otherwise acted on any matter or directed the Trustee to undertake any action (or refrain from taking any action), the
Issuer shall identify the amount of Notes held or beneficially owned by an Affiliated Holder or a Debt Fund Affiliate in an Officer’s
Certificate delivered to the Trustee, upon which the Trustee shall be entitled to conclusively rely without investigation.
Section 2.10. Temporary
Notes. Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations
that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate Definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may
be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under
this Indenture.
Section 2.11. Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any such Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee,
the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall dispose of such cancelled Notes in its customary manner (subject to the record retention requirements
of the Exchange Act). Certification of the cancellation of all cancelled Notes shall be delivered to the Issuer upon its written request
therefor. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted
Interest. If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special record
date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest
or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The
Issuer shall fix or cause to be fixed any such special record date and payment date; provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted interest. The Issuer shall promptly notify the Trustee
of any such special record date. At least 15 days before any such special record date, the Issuer (or, upon the written request of the
Issuer, the Trustee in the name and at the expense of the Issuer) shall send or cause to be sent to each Holder, with a copy to the Trustee,
a notice at his or her address as it appears in the Note Register that states the special record date, the related payment date and the
amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12
and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.13. CUSIP
Numbers; ISINs. The Issuer in issuing the Notes may use CUSIP numbers and ISINs (in each case, if then generally in use) and, if
so, the Trustee shall use CUSIP numbers and ISINs in notices of redemption or exchange as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained
in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Notes,
and any such redemption or exchange shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as
practicable notify the Trustee in writing of any change in the CUSIP numbers or ISINs.
Section 2.14. Additional
Amounts. All payments made by or on behalf of the Parent Guarantor in respect of its Guarantee will be made free and clear of and
without withholding or deduction for, or on account of, any taxes or other governmental charges unless the withholding or deduction of
such taxes or other governmental charges is then required by law or the administration thereof. If any deduction or withholding for any
present or future taxes or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the Parent Guarantor is resident shall at any time be required by such jurisdiction (or any such political subdivision
or taxing authority) in respect of any amounts to be paid by the Parent Guarantor under its Guarantee, the Parent Guarantor will pay
to the Holders of the Notes such additional amounts (“Additional Amounts”) as may be necessary in order that the net
amounts received by the Holders of the Notes who, with respect to any such tax or other governmental charge, are not resident in such
jurisdiction, after such deduction or withholding, shall be not less than the amounts that would have been received in respect of such
payments in the absence of such deduction or withholding; provided, however, that no Additional Amounts shall be payable
with respect to:
(1) any
tax or other governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein;
(2) any
tax or other governmental charge that would not have been imposed but for the existence of any present or former connection between the
Holder or beneficial owner of the Notes (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor
of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, nominee, partnership, limited
liability company or corporation) and the applicable taxing jurisdiction or any political subdivision or territory or possession thereof
or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary,
partner, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged
in trade or business therein or having or having had a permanent establishment therein, other than any such present or former connection
arising solely from the holding of the Notes or enforcement of rights and the receipt of payments with respect to the Notes;
(3) a
deduction or withholding with respect to any payment of (or in respect of) the principal of, or any interest on, the Notes to any Holder
who is a fiduciary, partnership or other entity that is not the sole beneficial owner of such payment to the extent such payment would
be required by the laws of the applicable taxing jurisdiction (or any political subdivision or taxing authority thereof or therein) to
be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary, a member of such partnership or
other entity, or a beneficial owner who would not have been entitled to such Additional Amounts had such beneficiary, settlor, member
or beneficial owner been the Holder of the Notes;
(4) any
tax or other governmental charge that would not have been imposed but for the presentation of the Notes (where presentation is required)
for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof
is duly provided for, whichever occurs later;
(5) any
estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge;
(6) any
tax or other governmental charge that is payable otherwise than by withholding from payments of (or in respect of) principal of, or any
interest on, the Notes;
(7) any
tax or other governmental charge that is imposed or withheld by reason of (i) the failure by the Holder or the beneficial owner of
the Notes to comply with a request of the Parent Guarantor addressed to the Holder to provide information concerning the nationality,
residence, identity or connection with the applicable taxing jurisdiction of the Holder or such beneficial owner or (ii) the failure
by the Holder or the beneficial owner of the Notes to make any declaration of non-residence or other similar claim for exemption or satisfy
any information or reporting requirement that is required or imposed by a statute, treaty, regulation or administrative practice of the
applicable taxing jurisdiction as a precondition to exemption from all or part of such tax or other governmental charge;
(8) any
tax or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Notes
to comply with the requirements of Sections 1471 through 1474 of the Code (or any amended or successor version), the U.S. Treasury Regulations
issued thereunder or any official interpretations thereof, any agreements entered into pursuant thereto, and any intergovernmental agreements
implementing the foregoing (including any legislation or other official guidance relating to such intergovernmental agreements); or
(9) any
combination of items above.
The Parent Guarantor will provide the Trustee and
Paying Agent with reasonable documentation evidencing the payment of any taxes or other governmental charges in respect of which the Parent
Guarantor has paid any Additional Amounts. Copies of such documentation will be provided to a Holder upon written request. At least 30
days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional
Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Parent
Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Parent Guarantor will deliver to the Trustee and
the Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable
and will set forth such other information necessary to enable the Paying Agent to remit such Additional Amounts to Holders on the payment
date.
Whenever in this Indenture or the Notes there is
mentioned, in any context, the payment of (or in respect of) the principal of, or interest on, the Notes, such mention shall be deemed
to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
ARTICLE 3
Redemption
Section 3.01. Notices
to Trustee. If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee, at least
two Business Days, in the case of Global Notes, or five Business Days, in the case of Definitive Notes (unless a shorter notice shall
be agreed to by the Trustee), before notice of redemption is required to be delivered or mailed to Holders pursuant to Section 3.03
hereof, an Officer’s Certificate setting forth (a) the paragraph or subparagraph of such Note and/or Section of this
Indenture pursuant to which the redemption shall occur, (b) the date of redemption (as such date may be delayed pursuant to Section 3.07(f) hereof,
the “Redemption Date”), (c) the principal amount of the Notes to be redeemed and (d) the redemption price.
Section 3.02. Selection
of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed or purchased at any time, the selection of
the Notes to be redeemed or purchased will be made in accordance with the Applicable Procedures. In the event of partial redemption or
purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than
10 days nor more than 60 days (except as set forth in Section 3.07(f) hereof) prior to the Redemption Date by the Trustee
from the outstanding Notes not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuer in
writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof
to be redeemed. Notes and portions of Notes selected shall be in minimum denominations of $1,000 and in integral multiples of $1,000
in excess thereof; no Notes in denominations of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are
to be redeemed, the entire outstanding amount of Notes held by such Holder shall be redeemed, even if not in a principal amount of at
least $2,000. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice
of Redemption or Purchase. Subject to Section 3.07(e) and Section 3.08 hereof, the Issuer shall send electronically,
mail or cause to be mailed by first-class mail, postage prepaid, notices of redemption or purchase at least 10 days but not more than
60 days (except as set forth in Section 3.07(f) hereof) before the Redemption Date to each Holder at such Holder’s
registered address stated in the Note Register or otherwise in accordance with the Applicable Procedures, except that redemption or purchase
notices may be delivered or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8
or Article 11 hereof. Notices of redemption or purchase may, at the Issuer’s discretion, be conditional. The Issuer may
also provide in any redemption or purchase notice that payment of the redemption price and the performance of the Issuer’s obligations
with respect to such redemption or purchase may be performed by another Person.
The notice shall identify the Notes to be redeemed
or purchased and shall state:
(a) the
Redemption Date;
(b) the
redemption or purchase price;
(c) if
any Note is to be redeemed or purchased in part only, the portion of the principal amount of that Note that is to be redeemed or purchased
and, with respect to any Definitive Note, that after the Redemption Date upon surrender of such Note, a new Note or Notes in a principal
amount equal to the unredeemed or unpurchased portion of the original Note representing the same indebtedness to the extent not redeemed
will be issued in the name of the Holder upon cancellation of the original Note; provided that new Notes will only be issued in
minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof;
(d) the
name and address of the Paying Agent;
(e) that
Notes called for redemption or purchase must be surrendered to the Paying Agent to collect the redemption or purchase price;
(f) that,
unless the Issuer defaults in making such redemption or purchase payment, interest on Notes called for redemption or purchase ceases
to accrue on and after the Redemption Date subject to the satisfaction or waiver of any conditions set forth in such notice;
(g) the
paragraph or subparagraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption or purchase
are being redeemed or purchased;
(h) the
CUSIP number and ISIN, if any, printed on the Notes being redeemed or purchased and that no representation is made as to the correctness
or accuracy of any such CUSIP or ISIN that is listed in such notice or printed on the Notes; and
(i) any
condition to such redemption or purchase.
In addition, any notice of redemption or purchase
may include additional information, including any information pursuant to Section 3.07(f) hereof.
At the Issuer’s request, the Trustee shall
give the notice of redemption or purchase in the Issuer’s name and at the Issuer’s expense; provided that the Issuer
shall have delivered to the Trustee, at least two Business Days, in the case of Global Notes, or five Business Days, in the case of Definitive
Notes, before notice of redemption or purchase is required to be delivered electronically, mailed or caused to be mailed to Holders pursuant
to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate requesting
that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
If the Notes are listed on an exchange, for so
long as the Notes are so listed and the rules of such exchange so require, the Issuer shall notify the exchange of any such redemption
or purchase and, if applicable, of the principal amount of any Notes outstanding following any partial redemption or purchase of Notes.
Section 3.04. Effect
of Notice of Redemption. A notice of redemption or purchase, if delivered electronically, mailed or caused to be mailed in a manner
herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure
to deliver such notice or any defect in the notice to the Holder of any Note designated for redemption or purchase in whole or in part
shall not affect the validity of the proceedings for the redemption or purchase of any other Note. Notes or portions of Notes called
for redemption or purchase shall become due and payable on the Redemption Date, subject to satisfaction or waiver of any conditions specified
in the notice. Subject to Section 3.05 hereof, on and after the Redemption Date, unless the Issuer defaults in the payment
of the redemption or purchase price, interest shall cease to accrue on the Notes called for redemption or purchase.
Section 3.05. Deposit
of Redemption Price.
(a) Prior
to 11:00 a.m. (New York City time) on the Redemption Date, with respect to the Notes, the Issuer shall deposit with the Trustee
or with the Paying Agent money sufficient to pay the redemption price of and accrued and unpaid interest on all Notes to be redeemed
on that Redemption Date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or
the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on,
all Notes to be redeemed.
(b) If
the Issuer complies with the provisions of the preceding clause (a), on and after the Redemption Date, unless the Issuer
defaults in the payment of the redemption price and subject to the satisfaction or waiver of any conditions set forth in the applicable
notice of redemption, interest shall cease to accrue on the Notes called for redemption. If a Note is redeemed on or after an applicable
Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the Redemption Date shall be
paid to the Person in whose name such Note was registered at the close of business on such Record Date in accordance with Applicable
Procedures. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuer
to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the Redemption Date until such principal
is paid, and to the extent lawful on any interest accrued to the Redemption Date not paid on such unpaid principal, in each case at the
rate provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes
Redeemed in Part. Upon surrender of a Definitive Note that is redeemed in part, the Issuer shall issue and the Trustee shall authenticate
for the Holder, at the expense of the Issuer, a new Note equal in principal amount to the unredeemed portion of the Note surrendered
representing the same indebtedness to the extent not redeemed; provided that each new Note will be in a minimum principal amount
of $2,000 and any integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything to the contrary in this
Indenture, only an Authentication Order and an Officer’s Certificate and not an Opinion of Counsel are required for the Trustee
to authenticate such new Note.
Section 3.07. Optional
Redemption.
(a) Except
as set forth in subsections (b), (d) and
(e) of this Section 3.07,
the Notes will not be redeemable at the Issuer’s option prior to July 1, 2026.
(b) At
any time prior to July 1, 2026, the Issuer may, at its option, at any time and from time to time, redeem the Notes, in whole or
in part, upon notice in accordance with Section 3.03 hereof, at a redemption price equal to (A) 100.0% of the principal
amount of the Notes redeemed, plus (B) the Applicable Premium as of the Redemption Date, plus (C) accrued and
unpaid interest, if any, to, but excluding, the Redemption Date, subject to the right of Holders of record on the relevant Record Date
to receive interest due on the Notes on the relevant Interest Payment Date falling prior to or on the Redemption Date.
(c) At
any time on and after July 1, 2026, the Issuer may, at its option, at any time and from time to time, redeem the Notes, in whole
or in part, upon notice in accordance with Section 3.03 hereof, at the redemption
prices (expressed as percentages of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest,
if any, thereon to, but excluding, the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date
to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date, if redeemed during the twelve-month
period beginning on July 1 of each of the years indicated below:
Year | | |
Redemption Price | |
2026 | | |
| 103.438 | % |
2027 | | |
| 101.719 | % |
2028 and thereafter | | |
| 100.000 | % |
(d) At
any time prior to July 1, 2026, the Issuer may, at its option, at any time and from time to time, redeem (i) an aggregate principal
amount of Notes not to exceed the amount of the Net Cash Proceeds received by the Parent Guarantor from one or more Equity Offerings or
a capital contribution to the Parent Guarantor made with the Net Cash Proceeds of one or more Equity Offerings, upon notice in accordance
with Section 3.03 hereof, at a redemption price equal to (i) 106.875% of the aggregate principal amount of the Notes
redeemed, plus (ii) accrued and unpaid interest, if any, to, but excluding, the Redemption Date, subject to the right of Holders
of record on the relevant Record Date to receive interest due on the Notes on the relevant Interest Payment Date falling prior to or on
the Redemption Date; provided that (A) the amount redeemed shall not exceed 40% of the aggregate principal amount of the Notes
issued under this Indenture (including any Additional Notes); (B) at least the lesser of (x) 50% of the aggregate principal
amount of the Notes originally issued under this Indenture on the Issue Date and (y) $250.0 million aggregate principal amount of
the Notes remains outstanding immediately after the occurrence of each such redemption (unless, in either case, all Notes are redeemed
or repurchased or to be redeemed or repurchased substantially concurrently); and (C) each such redemption occurs within 270 days
of the date of closing of the applicable Equity Offering.
(e) Notwithstanding
the foregoing, in connection with any tender offer, Change of Control Offer, Alternate Offer, Asset Sale Offer or Advance Offer for the
Notes, if Holders of not less than 90% in aggregate principal amount of the then outstanding Notes validly tender and do not validly withdraw
such Notes in such offer and the Issuer, or any third party making such offer in lieu of the Issuer, purchases all of the Notes validly
tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10 nor more
than 60 days’ prior notice, given not more than 60 days following such purchase date, to redeem all Notes that remain outstanding
following such purchase at a price equal to the price offered to each other Holder in such offer (which may be less than par and excluding
any early tender or incentive fee in such offer) plus, to the extent not included in the offer payment, accrued and unpaid interest, if
any, thereon, to, but excluding, the Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive
interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date. In determining whether the Holders of at
least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn Notes in a tender
offer, Change of Control Offer, Alternate Offer, Asset Sale Offer or Advance Offer, as applicable, Notes owned by an Affiliate of the
Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, or any Debt Fund Affiliate shall be
deemed to be outstanding for the purposes of such tender offer, Change of Control Offer, Alternate Offer, Asset Sale Offer or Advance
Offer, as applicable.
(f) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Section 3.01 through
Section 3.06 hereof. Notice of any redemption or offer to purchase, whether in connection with an Equity Offering, Change
of Control, Alternate Offer, Asset Sale Offer, Advance Offer or other transaction or event or otherwise, may, at the Issuer’s (or,
in the case of a Change of Control Offer, a third party making such Change of Control Offer) discretion, be given prior to the completion
or occurrence thereof, and any such redemption, offer to purchase or notice may, at the Issuer’s (or, in the case of a Change of
Control Offer, a third party making such Change of Control Offer) discretion, be subject to one or more conditions precedent (including
conditions precedent applicable to different amounts of Notes redeemed), including, but not limited to, completion or occurrence of the
related Equity Offering, Change of Control, Asset Sale, Advance Offer or other transaction or event, as the case may be. The Issuer may
redeem Notes pursuant to one or more of the relevant provisions in this Indenture, and a single notice of redemption may be delivered
with respect to redemptions made pursuant to different provisions. Any such notice may provide that redemptions made pursuant to different
provisions may have different Redemption Dates or may specify the order in which redemptions taking place on the same Redemption Date
are deemed to occur. In addition, if such redemption or offer to purchase is subject to satisfaction of one or more conditions precedent,
such notice shall state that, in the Issuer’s (or, in the case of a Change of Control Offer, a third party making such Change of
Control Offer) discretion, the redemption or repurchase date may be delayed until such time (including more than 60 days after the date
the notice of redemption or offer to purchase was sent) as any or all such conditions shall be satisfied (or waived by the Issuer (or,
in the case of a Change of Control Offer, a third party making such Change of Control Offer) in its sole discretion), or such redemption
or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied
(or waived by the Issuer (or, in the case of a Change of Control Offer, a third party making such Change of Control Offer) in its sole
discretion) by the redemption or purchase date, or by the redemption or purchase date so delayed, or that such notice or offer may be
rescinded at any time in the Issuer’s (or, in the case of a Change of Control Offer, a third party making such Change of Control
Offer) sole discretion. For the avoidance of doubt, if any redemption or repurchase date shall be delayed pursuant to this Section 3.07
and the terms of the applicable notice of redemption or repurchase, such redemption or repurchase date as so delayed may occur at any
time after the original redemption or repurchase date set forth in the applicable notice of redemption or repurchase and after the satisfaction
of any applicable conditions precedent, including, without limitation, on a date that is less than 10 days after the original redemption
or repurchase date or the redemption or repurchase date so delayed and more than 60 days after the date of the applicable notice of redemption
or repurchase. In addition, the Issuer may provide in such notice or offer to purchase that payment of the redemption or purchase price
and performance of the Issuer’s obligations with respect to such redemption or offer to purchase may be performed by another Person.
(g) The
Issuer, the Parent Guarantor, its direct and indirect equityholders, including the Investors, any of its Subsidiaries and their respective
Affiliates and members of management may acquire the Notes by means other than a redemption pursuant to this Article 3,
whether by tender offer, open market purchases, negotiated transactions or otherwise.
(h) The
Trustee shall have no duty to calculate or verify the calculation of the Applicable Premium.
Section 3.08. Offers
to Repurchase by Application of Excess Proceeds.
(a) In
the event that, pursuant to Section 4.10 hereof, the Issuer shall be required to commence an Asset Sale Offer, or if
the Issuer shall elect to commence an Advance Offer, the Issuer shall follow the procedures specified below.
(b) The
Asset Sale Offer or the Advance Offer, as the case may be, shall remain open for a period of 20 Business Days following its commencement
and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later
than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall apply all
Excess Proceeds (the “Offer Amount”), to the purchase of Notes and, if required or permitted by the terms thereof,
Pari Passu Indebtedness (on a pro rata basis, if applicable, with adjustments as necessary so that no Notes or Pari Passu Indebtedness,
as the case may be, will be repurchased in part in an unauthorized denomination), or, if less than the Offer Amount has been tendered,
all Notes and Pari Passu Indebtedness (in the case of Excess Proceeds) tendered in response to the Asset Sale Offer or the Advance Offer,
as the case may be. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(c) If
the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if
any, up to but excluding the Purchase Date shall be paid to the Person in whose name a Note is registered at the close of business on
such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer or the Advance
Offer, as the case may be.
(d) Upon
the commencement of an Asset Sale Offer or an Advance Offer, as the case may be, the Issuer shall send, electronically or by first-class
mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer or the Advance Offer, as the case may be. The Asset Sale Offer or
the Advance Offer, as the case may be, shall be made to all Holders and, if required or permitted by the terms thereof, holders of such
Pari Passu Indebtedness. The notice, which shall govern the terms of the Asset Sale Offer or the Advance Offer, as the case may be, shall
state:
(i) that
the Asset Sale Offer or the Advance Offer, as the case may be, is being made pursuant to this Section 3.08 and
Section 4.10 hereof and the length of time the Asset Sale Offer or the Advance Offer, as the case may be, shall
remain open;
(ii) the
Offer Amount, the purchase price and the Purchase Date;
(iii) that
any Note not tendered or accepted for payment shall continue to accrue interest;
(iv) that,
unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer or the Advance Offer,
as the case may be, shall cease to accrue interest on and after the Purchase Date;
(v) that
any Holder electing to have less than all of the aggregate principal amount of its Notes purchased pursuant to an Asset Sale Offer or
an Advance Offer, as the case may be, may elect to have Notes purchased in integral multiples of $1,000;
(vi) that
Holders electing to have a Note purchased pursuant to any Asset Sale Offer or Advance Offer, as the case may be, shall be required to
surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer
such Note by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified
in the notice at least two Business Days before the Purchase Date;
(vii) that
Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives,
not later than the close of business on the tenth Business Day prior to the expiration date of the Offer Period, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased;
(viii) that,
if the aggregate principal amount of Notes and, if applicable, any Pari Passu Indebtedness, surrendered by the holders thereof exceeds
the Offer Amount, the Issuer shall purchase such Notes (subject to applicable DTC procedures as to Global Notes) and such Pari Passu Indebtedness,
as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Notes or such
Pari Passu Indebtedness, as the case may be, tendered (with such adjustments as may be deemed appropriate by the Issuer) so that only
Notes in an amount not less than $2,000 or integral multiples of $1,000 in excess thereof; and
(ix) that
Holders whose certificated Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased; provided
that new Notes will only be issued in denominations of $2,000 and in integral multiples of $1,000 in excess thereof.
The notice, if delivered electronically or mailed
in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (i) the
notice is delivered or mailed in a manner herein provided and (ii) any Holder fails to receive such notice or a Holder receives such
notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings
for the purchase of the Notes as to all other Holders that properly received such notice without defect.
(e) On
or before the Purchase Date, the Issuer shall, to the extent lawful, (i) accept for payment, on a pro rata basis as described in
clause (d)(viii) of this Section 3.08, the Offer Amount of Notes or portions thereof validly tendered
pursuant to the Asset Sale Offer or the Advance Offer, as the case may be, or if less than the Offer Amount has been tendered, all Notes
tendered and (ii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate
stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The
Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal
to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly
issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred
by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, only
an Officer’s Certificate and not an Opinion of Counsel is required for the Trustee to authenticate and mail or deliver such new
Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent
not repurchased; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in
excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall announce
the results of the Asset Sale Offer or the Advance Offer, as the case may be, on or as soon as practicable after the Purchase Date on
the website or online system maintained pursuant to Section 4.03(a) hereof.
(g) Prior
to noon (New York City time) on the Purchase Date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient
to pay the purchase price of and accrued and unpaid interest on all Notes to be purchased on that Purchase Date. The Trustee or the Paying
Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts
necessary to pay the purchase price of, and accrued and unpaid interest on, all Notes to be redeemed.
Other than as specifically provided in this Section 3.08
or Section 4.10 hereof, any purchase pursuant to this Section 3.08 shall be made pursuant to the applicable provisions
of Sections 3.01 through 3.06 hereof, and references therein to “redeem,” “redemption,” “Redemption
Date” and similar words shall be deemed to refer to “purchase,” “repurchase,” “Purchase Date”
and similar words, as applicable.
Section 3.09. Mandatory
Redemption. The Issuer shall not be required to make any mandatory redemption or sinking fund payment with respect to the Notes.
ARTICLE 4
Covenants
Section 4.01. Payment
of Notes. The Issuer shall pay or cause to be paid the principal of, and premium, if any, and interest on the Notes on the dates
and in the manner provided in the Notes and this Indenture. Principal and premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Issuer or a Guarantor or an Affiliate of the Issuer or a Guarantor, holds as of noon
(New York City time) on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to
pay all principal and premium, if any, and interest then due.
The Paying Agent shall not be obliged to make any
payment until such time as it has received sufficient funds in order to make such payment.
The Issuer shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; the Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02. Maintenance
of Office or Agency. The Issuer shall maintain the offices or agencies (which may be an office of the Trustee or an affiliate of
the Trustee, Registrar or Transfer Agent) required under Section 2.03 hereof where Notes may be surrendered for registration
of transfer or for exchange or presented for payment and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office; provided that the Corporate Trust Office of the Trustee shall not be an office or agency of the Issuer for the purpose
of effecting service of legal process against the Issuer or any Guarantor.
The Issuer may also from time to time designate
one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain such offices or agencies as required by Section 2.03 hereof for such purposes. The Issuer shall give
prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
The Issuer hereby designates the Corporate Trust
Office and U.S. Bank Trust Company, National Association as such offices or agencies of the Issuer in accordance with Section 2.03
hereof.
Section 4.03. Reports
and Other Information.
(a) So
long as any Notes are outstanding, the Parent Guarantor shall have its annual consolidated financial statements audited by a nationally
recognized firm of independent auditors. In addition, after the Issue Date, so long as any Notes are outstanding, the Parent Guarantor
shall furnish to the Holders of the Notes the following reports:
(1) (x) all
annual and year-to-date interim period (ended at each quarter end, except for the fourth quarter) financial statements substantially
in forms that would be required to be contained in a filing with the SEC on Forms 10-K and 10-Q of the Parent Guarantor, if the Parent
Guarantor were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results
of Operations”; (y) with respect to the annual and year-to-date interim information, a presentation of “Adjusted EBITDA”
of the Parent Guarantor substantially consistent with the presentation thereof in the Offering Memorandum and derived from such financial
information; and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Parent
Guarantor’s independent registered public accounting firm; and
(2) substantially
the same information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01
(only with respect to acquisitions that are “significant” at the 20% or greater level pursuant to clauses (1)(i) and
(ii) of the definition of “Significant Subsidiary” under Rule 1-02 of Regulation S-X only), 4.01, 4.02(a) and
(b), 5.01 and 5.02(b) (with respect to the principal executive officer, president, principal financial officer and principal operating
officer only) and (c) (with respect to the principal executive officer, president, principal financial officer and principal operating
officer only and other than with respect to information otherwise required or contemplated by subclause (3) of such Item or by Item
402 of Regulation S-K) as in effect on the Issue Date if the Parent Guarantor were required to file such reports;
provided,
however, that (A) no such report shall be required to include as an exhibit, or to include a summary of the terms of, any
employment or compensatory arrangement, agreement, plan or understanding between the Parent Guarantor (or any of its direct or indirect
parent entities or its Subsidiaries) and any director, manager or officer, of the Parent Guarantor (or any of its direct or indirect parent
entities or its Subsidiaries), (B) the Parent Guarantor shall not be required to make available any information regarding the occurrence
of any of the events set forth in clause (2) above if the Parent Guarantor determines in its good faith judgment that the event that
would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial
positions or prospects of the Parent Guarantor and its Restricted Subsidiaries taken as a whole, (C) no such report will be required
to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial
information contained therein, (D) no such report shall be required to comply with Regulation S-X, including, without limitation,
Rules 3-03(e), 3-05, 3-09, 3-10, 3-16, 13-01 and 13-02 or Article 11 thereof (or any successor or similar rules), (E) no
such report shall be required to provide any information that is not otherwise similar to information currently included in the Offering
Memorandum, (F) in no event shall such reports be required to include as an exhibit copies of any agreements, financial statements
or other items that would be required to be filed as exhibits under the SEC rules, (G) trade secrets and other information that could
cause competitive harm to the Parent Guarantor and its Restricted Subsidiaries may be excluded from any disclosures, (H) such financial
statements or information shall not be required to contain any “segment reporting” and (I) such financial statements
and information may, at the election of the Parent Guarantor, be prepared in accordance with U.S. GAAP or IFRS.
All such annual reports shall be furnished within
90 days after the end of the fiscal year to which they relate; all such quarterly reports shall be furnished within 60 days after the
end of the fiscal quarter to which they relate; and all such current reports shall be furnished within 15 days of the due date specified
in the SEC’s rules and regulations for reporting companies under the Exchange Act. Notwithstanding the foregoing, any annual
reports or quarterly reports may be furnished on or prior to the due date applicable to the Parent Guarantor or any parent entity of the
Parent Guarantor pursuant to the SEC’s rules and regulations under the Exchange Act, if later than a date provided in the preceding
sentence.
The
Parent Guarantor will be deemed to have furnished the reports referred to in clauses (1) and (2) of this Section 4.03(a) if
the Parent Guarantor or any parent entity of the Parent Guarantor has filed reports containing substantially such information (or any
such information of a parent entity pursuant to the fourth succeeding paragraph) with the SEC.
If
the Parent Guarantor or any parent entity of the Parent Guarantor does not file reports containing such information with the SEC,
then the Parent Guarantor shall make available such information and such reports to any Holder of the Notes and to any beneficial owner
of the Notes, in each case by posting such information on a password-protected website or online data system which shall require a confidentiality
acknowledgment, and shall make such information readily available to any bona fide prospective investor, any securities analyst (to the
extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential;
provided that the Parent Guarantor shall post such information thereon and make readily available any password or other login information
to any such bona fide prospective investor, securities analyst or market maker; provided, however, that the Parent Guarantor
may deny access to any information or reports otherwise to be provided pursuant to this covenant to any such Holder, beneficial owner,
bona fide prospective investor, securities analyst or market maker that is a competitor or to the extent that the Parent Guarantor determines
in its sole discretion that the provision of such information to such Person may be harmful to the Parent Guarantor and its Subsidiaries,
its parent entities or the Investors; provided further that such Holders, beneficial owners, bona fide prospective investors, securities
analysts and market makers shall agree to (A) treat all such reports (and information contained therein) as confidential, (B) not
use such reports (and the information contained therein) for any purpose other than their investment or potential investment in the Notes
and (C) not publicly disclose any such reports (and the information contained therein).
(b) To
the extent not satisfied by Section 4.03(a) hereof, the Parent Guarantor shall furnish to Holders of the Notes,
securities analysts and prospective investors upon request the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act, so long as the Notes are not freely transferable under the Securities Act.
(c) If
any Subsidiary of the Parent Guarantor is an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted
Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Parent Guarantor, then the Parent
Guarantor shall furnish the annual and quarterly information required by Section 4.03(a)(1) hereof, which shall
include a presentation of selected financial metrics (in the Parent Guarantor’s sole discretion) of such Unrestricted Subsidiaries
as a group in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
(d) Notwithstanding
the foregoing, the Parent Guarantor may satisfy its obligations under this Section 4.03 with respect to financial statements
related to the Parent Guarantor by furnishing financial information relating to any parent entity of the Parent Guarantor; provided
that if such parent entity does not guarantee the Notes then the same is accompanied by selected financial metrics that show the differences
(in the Parent Guarantor’s sole discretion) between the information relating to such parent, on the one hand, and the information
relating to the Parent Guarantor and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(e) Notwithstanding
anything herein to the contrary, the Parent Guarantor will not be deemed to have failed to comply with any of its obligations hereunder
for purposes of clause (iii) of Section 6.01(a) hereof until 180 days after the receipt of the
written notice delivered thereunder.
To
the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently
provided, the Parent Guarantor will be deemed to have satisfied its obligations with respect thereto at such time and any Default
with respect thereto shall be deemed to have been cured.
The Trustee shall have no duty to review or analyze
any reports furnished or made available to it and the Trustee’s receipt of such reports shall not constitute actual or constructive
knowledge of the information contained therein or determinable therefrom, including the Parent Guarantor’s or the Issuer’s
compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).
Notwithstanding the foregoing, the Parent Guarantor
will not be required to disclose any information or take any actions that, in the good faith view of the Parent Guarantor, would violate
applicable securities laws or the SEC’s “gun-jumping” rules.
Section 4.04. Compliance
Certificate.
(a) the
Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from
its principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities
of the Parent Guarantor and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officer with a view to determining whether the Parent Guarantor and its Restricted Subsidiaries have kept, observed, performed and fulfilled
their respective obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best
of his or her knowledge, on behalf of the Parent Guarantor and its Restricted Subsidiaries have kept, observed, performed and fulfilled
in all material respects each and every condition and covenant contained in this Indenture during such fiscal year and no Default has
occurred and is continuing with respect to any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default
shall have occurred and is continuing, describing all such Defaults of which he or she may have knowledge and what action the Issuer
is taking or proposes to take with respect thereto).
(b) When
any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Indebtedness
of the Parent Guarantor or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer shall
promptly (which shall be no more than 20 Business Days after becoming aware of such Default) deliver to the Trustee by registered or
certified mail or by facsimile or electronic transmission an Officer’s Certificate specifying such Default (unless such Default
has been cured or waived within such 20-Business Day time period).
Section 4.05. Taxes.
The Parent Guarantor shall pay or discharge, and shall cause each of its Restricted Subsidiaries to pay or discharge, prior to delinquency,
all material taxes, lawful assessments, and governmental levies except such as are contested in good faith and by appropriate actions
or where the failure to effect such payment or discharge is not adverse in any material respect to the Holders.
Section 4.06. Stay,
Extension and Usury Laws. The Issuer and each of the Guarantors covenant (to the extent that they may lawfully do so) that they shall
not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury
law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture and the
Notes; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage
of any such law, and (to the extent that they may lawfully do so) covenant that they shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. Limitation
on Restricted Payments.
(a) The
Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare
or pay any dividend or make any payment or distribution on account of the Parent Guarantor’s, or any of its Restricted Subsidiaries’,
Equity Interests (in each case, solely to a holder of Equity Interests in such Person’s capacity as a holder of such Equity Interests),
including any dividend, payment or distribution payable in connection with any merger, amalgamation or consolidation other than (1) dividends,
payments and distributions by the Parent Guarantor payable solely in Equity Interests (other than Disqualified Stock) of the Parent Guarantor
or in options, warrants or other rights to purchase such Equity Interests (other than Disqualified Stock) or (2) dividends, payments
and distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect
of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Subsidiary, the Parent Guarantor or a
Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution in accordance with its Equity Interests
in such class or series of securities;
(ii) purchase,
redeem, defease or otherwise acquire or retire for value any Equity Interests of the Parent Guarantor or any direct or indirect parent
company of the Parent Guarantor, including any purchase, redemption, defeasance, acquisition or retirement in connection with any merger,
amalgamation or consolidation, in each case held by a Person other than the Parent Guarantor or a Restricted Subsidiary;
(iii) make
any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case, prior to any scheduled
repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (1) Indebtedness permitted under clauses (vii) and
(viii) of Section 4.09(b) hereof or (2) the payment, redemption, purchase, repurchase,
defeasance or other acquisition or retirement for value of Subordinated Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due within one year of the date of payment, redemption, purchase,
repurchase, defeasance or acquisition or retirement; or
(iv) make
any Restricted Investment
(all such payments and other actions set forth in clauses
(i) through (iv) above (other than any exceptions thereto) being collectively referred to as “Restricted
Payments”), unless, at the time of such Restricted Payment:
(A) in
the case of a Restricted Payment under clauses (i) and (ii) above and made pursuant to Section 4.07(a)(B)(1),
no Event of Default shall have occurred and be continuing or would occur as a consequence thereof and, in the case of a Restricted Payment
under clauses (iii) and (iv) above and made pursuant to Section 4.07(a)(B)(1), no Event of Default described
under clauses (i), (ii), (vi) or (vii) of Section 6.01(a) hereof shall have occurred and
be continuing or would occur as a consequence thereof; and
(B) such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent Guarantor and its Restricted
Subsidiaries after the Issue Date (including Restricted Payments permitted by clauses (i) (without duplication) and (vi)(C) of
Section 4.07(b) hereof), but excluding all other Restricted Payments permitted by Section 4.07(b) hereof),
is less than the sum of (without duplication):
(1) 50%
of the Consolidated Net Income of the Parent Guarantor for the period (taken as one accounting period and including any predecessor of
the Parent Guarantor) beginning on July 1, 2014 to the end of the Parent Guarantor’s most recently ended fiscal quarter for
which internal financial statements are available at the time of such Restricted Payment; plus
(2) 100%
of the aggregate Net Cash Proceeds and the fair market value of marketable securities or other property received by the Parent Guarantor
or its Restricted Subsidiaries after the Original Issue Date (other than Net Cash Proceeds to the extent such Net Cash Proceeds have been
used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to clause (xii)(A) of Section 4.09(b) hereof)
from the issue or sale of:
(i) (A) Equity
Interests of the Parent Guarantor, including Treasury Capital Stock, but excluding Net Cash Proceeds and the fair market value of marketable
securities or other property received from the sale of:
(x) Equity
Interests of the Parent Guarantor to any future, present or former employees, directors, officers, managers, independent contractors
or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Guarantor, any direct
or indirect parent company of the Parent Guarantor or any of the Parent Guarantor’s Subsidiaries after the Original Issue Date to
the extent such amounts have been applied to Restricted Payments made in accordance with clause (iv) of Section 4.07(b) hereof;
and
(y) Designated
Preferred Stock; and
(B) to
the extent such Net Cash Proceeds, marketable securities or other property are actually contributed to the Parent Guarantor or
any of its Restricted Subsidiaries, Equity Interests of the Parent Guarantor or any of the Parent Guarantor’s direct or indirect
parent companies (excluding contributions of the proceeds from the sale of Designated Preferred Stock of any such companies or contributions
to the extent such amounts have been applied to Restricted Payments made in accordance with clause (iv) of Section 4.07(b) hereof);
or
(ii) Indebtedness
of the Parent Guarantor or a Restricted Subsidiary that has been converted into or exchanged for such Equity Interests of the Parent Guarantor
or a parent company of the Parent Guarantor;
provided
that this clause (2) shall not include the proceeds from (w) Refunding Capital Stock applied in accordance with clause (ii) of
Section 4.07(b) hereof, (x) Equity Interests or convertible debt securities of the Parent Guarantor or a Restricted
Subsidiary sold to a Restricted Subsidiary or to the Parent Guarantor, (y) Disqualified Stock or debt securities that have been converted
into Disqualified Stock or (z) Excluded Contributions; plus
(3) 100%
of the aggregate amount of Cash Equivalents and the fair market value of marketable securities or other property contributed to the capital
of the Parent Guarantor or a Restricted Subsidiary (including the aggregate principal amount of any Indebtedness of the Parent Guarantor
or a Restricted Subsidiary contributed to the Parent Guarantor or a Restricted Subsidiary for cancellation) or that becomes part of the
capital of the Parent Guarantor or a Restricted Subsidiary through consolidation, amalgamation or merger following the Original Issue
Date (other than (i) Net Cash Proceeds to the extent such Net Cash Proceeds have been used to incur Indebtedness or issue Disqualified
Stock or Preferred Stock pursuant to clause (xii)(A) of Section 4.09(b) hereof, (ii) contributions
by a Restricted Subsidiary or the Parent Guarantor and (iii) any Excluded Contributions); plus
(4) 100%
of the aggregate amount received in Cash Equivalents and the fair market value of marketable securities or other property received by
the Parent Guarantor or any Restricted Subsidiary by means of:
(i) the
sale or other disposition (other than to the Parent Guarantor or a Restricted Subsidiary) of, or other returns on Investments from, Restricted
Investments made by the Parent Guarantor or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments
from the Parent Guarantor or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute
Restricted Investments made by the Parent Guarantor or its Restricted Subsidiaries, in each case after the Original Issue Date; or
(ii) the
issuance, sale or other disposition (other than to the Parent Guarantor or a Restricted Subsidiary) of the Equity Interests of, or a dividend
or distribution (other than an Excluded Contribution) from, an Unrestricted Subsidiary (other than, in each case, to the extent the Investment
in such Unrestricted Subsidiary was made by the Parent Guarantor or a Restricted Subsidiary pursuant to clause (vii) of
Section 4.07(b) hereof or to the extent such Investment constituted a Permitted Investment, but including such Cash
Equivalents and fair market value to the extent exceeding the amount of such Investment), in each case, after the Original Issue Date;
or
(iii) any
returns, profits, distributions, principal payments and similar amounts received on account of any Permitted Investment or an Investment
otherwise permitted to be incurred under this Section 4.07 and without duplication of any returns, profits, distributions,
principal payments or similar amounts included in the calculation of such basket; plus
(5) in
the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of
an Unrestricted Subsidiary into the Parent Guarantor or a Restricted Subsidiary or the transfer of all or substantially all of the assets
of an Unrestricted Subsidiary to the Parent Guarantor or a Restricted Subsidiary after the Issue Date, the fair market value (as determined
by the Parent Guarantor in good faith) of the Investment in such Unrestricted Subsidiary (or the assets transferred) at the time of the
redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, amalgamation, consolidation or
transfer of assets, other than to the extent the Investment in such Unrestricted Subsidiary was made by the Parent Guarantor or a Restricted
Subsidiary pursuant to clause (vii) of Section 4.07(b) hereof or to the extent such Investment
constituted a Permitted Investment made after the Original Issue Date, but, to the extent exceeding the amount of such Permitted Investment,
including such excess amounts of fair market value; plus
(6) the
aggregate amount of Cumulative Retained Asset Sale Proceeds and Declined Proceeds since the Issue Date; plus
(7) the
greater of (A) $300.0 million and (B) 40.0% of LTM EBITDA.
(b) The
provisions of Section 4.07(a) hereof shall not prohibit:
(i) the
payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration
of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice,
the dividend or other distribution or redemption payment would have complied with the provisions of this Indenture;
(ii) (A) the
redemption, repurchase, defeasance, retirement or other acquisition of any Equity Interests (“Treasury Capital Stock”),
including any accrued and unpaid dividends thereon, or Subordinated Indebtedness of the Parent Guarantor or any Restricted Subsidiary
or any Equity Interests of any direct or indirect parent company of the Parent Guarantor, in exchange for, or in an amount not to exceed
the proceeds of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary) of Equity Interests of the Parent
Guarantor or any direct or indirect parent company of the Parent Guarantor to the extent contributed to the Parent Guarantor (in each
case, other than any Disqualified Stock) (“Refunding Capital Stock”), (B) the declaration and payment of dividends
on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary of the Parent
Guarantor or to an employee stock ownership plan or any trust established by the Parent Guarantor or any of its Subsidiaries) of Refunding
Capital Stock, and (C) if, immediately prior to the retirement of Treasury Capital Stock, the declaration and payment of dividends
thereon was permitted under clauses (vi)(A) or (B) of this Section 4.07(b),
the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were
used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent company of the Parent Guarantor)
in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such Treasury
Capital Stock immediately prior to such retirement;
(iii) the
prepayment, defeasance, redemption, repurchase, exchange or other acquisition or retirement of (1) Subordinated Indebtedness of the
Issuer or a Guarantor made by exchange for, or in an amount not to exceed the proceeds of the sale of, new Indebtedness of the Issuer
or a Guarantor or Disqualified Stock of the Issuer or a Guarantor made within 120 days of such incurrence or issuance of new Indebtedness
or Disqualified Stock or (2) Disqualified Stock of the Issuer or a Guarantor made by exchange for, or in an amount not to exceed
the proceeds of the sale of, Disqualified Stock of the Issuer or a Guarantor made within 120 days of such issuance of Disqualified Stock,
that, in each case, is incurred or issued, as applicable, in compliance with Section 4.09 hereof so long as:
(A) the
principal amount (or accreted value, if applicable) of such new Indebtedness or the liquidation preference of such new Disqualified Stock
does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Subordinated
Indebtedness or the liquidation preference of, plus any accrued and unpaid dividends on, the Disqualified Stock being so prepaid, defeased,
redeemed, repurchased, exchanged, acquired or retired for value, plus the amount of any premium (including tender premium) paid on the
Subordinated Indebtedness or Disqualified Stock being so defeased, redeemed, repurchased, exchanged, acquired or retired, defeasance costs
and any fees and expenses incurred in connection with the issuance of such new Indebtedness or Disqualified Stock;
(B) such
new Indebtedness is subordinated to the Notes or the applicable Guarantee at least to the same extent as such Subordinated Indebtedness
so defeased, redeemed, repurchased, exchanged, acquired or retired;
(C) such
new Indebtedness or Disqualified Stock has a final scheduled maturity date equal to or later than the final scheduled maturity date of
the Subordinated Indebtedness or Disqualified Stock being so defeased, redeemed, repurchased, exchanged, acquired or retired (or, if earlier,
a date that is at least 91 days after the maturity date of the Notes); and
(D) such
new Indebtedness or Disqualified Stock has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average
Life to Maturity of the Subordinated Indebtedness or Disqualified Stock being so defeased, redeemed, repurchased, exchanged, acquired
or retired (or requires no or nominal payments in cash prior to the date that is 91 days after the maturity date of the Notes);
(iv) Restricted
Payments to pay for the repurchase, redemption or other acquisition or retirement for value of Equity Interests (other than Disqualified
Stock) of the Parent Guarantor or any direct or indirect parent company of the Parent Guarantor held by any future, present or former
employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment
Affiliates or Immediate Family Members) of the Parent Guarantor, any of its Subsidiaries or any of its direct or indirect parent companies
pursuant to any employee, director, officer, manager, member, partner, independent contractor or consultant equity plan or stock option
plan or any other employee, director, officer, manager, member, partner, independent contractor or consultant benefit plan or agreement,
or any equity subscription or equityholder agreement or any termination agreement (including, for the avoidance of doubt, any principal
and interest payable on any Indebtedness issued by the Parent Guarantor or any direct or indirect parent company of the Parent Guarantor
in connection with such repurchase, retirement or other acquisition), including any Equity Interests received or rolled over by any future,
present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the Parent Guarantor,
any of its Subsidiaries or any direct or indirect parent company of the Parent Guarantor in connection with any transaction; provided
that the aggregate amount of Restricted Payments made under this clause (iv) does not exceed in any calendar year an amount equal
to the greater of (a) $75.0 million and (b) 10.0% of LTM EBITDA, with unused amounts in any calendar year being carried over
to succeeding calendar years; provided further that such amount in any calendar year under this clause may be increased by an amount
not to exceed:
(A) the
cash proceeds from the sale or issuance of Equity Interests (other than Disqualified Stock and other than to a Restricted Subsidiary)
of the Parent Guarantor and, to the extent contributed to the Parent Guarantor or its Subsidiaries, the cash proceeds from the sale of
Equity Interests of any of the Parent Guarantor’s direct or indirect parent companies, in each case to any future, present or former
employees, directors, officers, managers, members, partners, independent contractors or consultants (or their respective Controlled Investment
Affiliates or Immediate Family Members) of the Parent Guarantor, any of its Subsidiaries or any of its direct or indirect parent companies
that occurred or occurs after the Original Issue Date, to the extent the cash proceeds from the sale or issuance of such Equity Interests
have not otherwise been applied to the payment of Restricted Payments by virtue of clause (B) of Section 4.07(a) hereof;
plus
(B) the
amount of any cash bonuses otherwise payable to future, present or former employees, directors, officers, managers, members, partners,
independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent
Guarantor, any of its Subsidiaries or any of its direct or indirect parent companies that are foregone in exchange for the receipt of
Equity Interests of the Parent Guarantor or any of its direct or indirect parent companies pursuant to any compensation arrangement, including
any deferred compensation plan; plus
(C) the
cash proceeds of key man life insurance policies received by the Parent Guarantor or its Restricted Subsidiaries (or any direct or indirect
parent company of the Parent Guarantor to the extent contributed to the Parent Guarantor or one of its Subsidiaries) after the Issue Date;
less
(D) the
amount of any Restricted Payments previously made with the cash proceeds described in clauses (A), (B) and (C) of
this clause (iv);
provided
that the Parent Guarantor may elect to apply all or any portion of the aggregate increase contemplated by clauses (A), (B) and
(C) of this clause (iv) in any calendar year; and provided further that (i) cancellation of Indebtedness
owing to the Parent Guarantor or any Restricted Subsidiary from any future, present or former employees, directors, officers, managers,
members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members)
of the Parent Guarantor, any of the Parent Guarantor’s direct or indirect parent companies or any of the Parent Guarantor’s
Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Parent Guarantor or any of its direct or indirect parent
companies and (ii) the repurchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon
or in connection with the exercise of options, warrants or similar instruments if such Equity Interests represent all or a portion of
the exercise price thereof or payments, in lieu of the issuance of fractional Equity Interests or withholding to pay other taxes payable
in connection therewith, in the case of each of clauses (i) and (ii), will not be deemed to constitute a Restricted Payment for purposes
of this Section 4.07 or any other provision of this Indenture;
(v) the
declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Parent Guarantor
or any of its Restricted Subsidiaries or any class or series of Preferred Stock of any Restricted Subsidiary issued in accordance with
Section 4.09 hereof to the extent such dividends or distributions are included in the definition of “Fixed
Charges”;
(vi) (A) the
declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued
by the Parent Guarantor after the Issue Date;
(B) the
declaration and payment of dividends to any direct or indirect parent company of the Parent Guarantor, the proceeds of which will be used
to fund the payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued
by such parent company after the Issue Date; provided that the amount of dividends paid pursuant to this clause (B) shall
not exceed the aggregate amount of cash actually contributed to the Parent Guarantor from the sale of such Designated Preferred Stock;
or
(C) the
declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock in excess of the dividends declarable and payable
thereon pursuant to clause (ii) of this Section 4.07(b);
provided,
in the case of each of (A) and (C) of this clause (vi), that for the
most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of
issuance of such Designated Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is Preferred Stock, after
giving effect to such issuance or declaration on a pro forma basis, the Parent Guarantor could incur $1.00 of additional Indebtedness
pursuant to Section 4.09(a) hereof;
(vii) Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause
(vii) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the
extent the proceeds of such sale do not consist of Cash Equivalents or marketable securities (until such proceeds are converted to Cash
Equivalents), not to exceed the greater of (a) $150.0 million and (b) 20.0% of LTM EBITDA at the time of such Investment (in
each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made
and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest,
distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments; provided,
however, that if any Investment pursuant to this clause (vii) is made in any Person that is not a Restricted
Subsidiary of the Parent Guarantor at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after
such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) of the definition of “Permitted
Investments” and shall cease to have been made pursuant to this clause (vii);
(viii) payments
made or expected to be made by the Parent Guarantor or any Restricted Subsidiary in respect of withholding or similar taxes payable upon
or in connection with the exercise or vesting of Equity Interests or any other equity award by any future, present or former employee,
director, officer, member of management or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members)
of the Parent Guarantor or any Restricted Subsidiary or any direct or indirect parent company of the Parent Guarantor and any repurchases
or withholdings of Equity Interests in connection with the exercise or vesting of stock options, warrants or the issuance of restricted
stock units or similar equity-based awards or payments in lieu of the issuance of fractional Equity Interests with respect to stock options,
warrants, restricted stock units or similar equity-based awards;
(ix) Restricted
Payments in an amount not to exceed the sum of (A) up to 7.0% per annum of the amount of Net Cash Proceeds from any Equity Offering
received by or contributed to the Parent Guarantor or any of its Restricted Subsidiaries and (B) an aggregate amount per annum not
to exceed 7.0% of Market Capitalization;
(x) Restricted
Payments that are made (a) in an amount that does not exceed the aggregate amount of Excluded Contributions received following the
Original Issue Date or (b) without duplication with clause (a), in an amount not to exceed the cash proceeds from a sale, conveyance,
transfer or other disposition in respect of property or assets acquired after the Original Issue Date, if the acquisition of such property
or assets was financed with Excluded Contributions;
(xi) (A) Restricted
Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (xi)(A) (in the case
of Restricted Investments, at the time outstanding (without giving effect to the sale of an Investment to the extent the proceeds of such
sale do not consist of, or have not been converted to, Cash Equivalents)) not to exceed the greater of (a) $300.0 million and (b) 40.0%
of LTM EBITDA at such time (in the case of a Restricted Investment, determined on the date such Investment is made, with the fair market
value of such Investment being measured at the time made and without giving effect to subsequent changes in value, plus the amount of
any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar
amounts) in respect of such Investments); provided, however, that if any Restricted Payment pursuant to this clause(xi)(A) consists
of an Investment made in any Person that is not a Restricted Subsidiary of the Parent Guarantor at the date of the making of such Investment
and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant
to clause (a) of the definition of “Permitted Investments” and shall cease to have been made pursuant to this clause
(xi)(A); and (B) any Restricted Payments, so long as, after giving pro forma effect to the payment of any such Restricted Payment
pursuant to this clause (xi)(B), the Consolidated Total Debt Ratio shall be no greater than 5.50 to 1.00;
(xii) distributions
or payments of Securitization Fees and purchases of receivables in connection with any Qualified Securitization Facility or any repurchase
obligation in connection therewith;
(xiii) [reserved];
(xiv) the
repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness, Disqualified Stock or Preferred
Stock pursuant to provisions similar to those described under Sections 4.10 and 4.14 hereof; provided
that if the Issuer shall have been required to make a Change of Control Offer or Asset Sale Offer, as applicable, to purchase the Notes
on the terms provided in this Indenture applicable to Change of Control Offers or Asset Sale Offers, respectively, all Notes validly tendered
by Holders of such Notes in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed,
acquired or retired for value;
(xv) the
declaration and payment of dividends or distributions by the Parent Guarantor to, or the making of loans to, any direct or indirect parent
entity of the Parent Guarantor or any other Restricted Payment in amounts required for any direct or indirect parent company of the Parent
Guarantor to pay, in each case without duplication:
(A) franchise,
excise and similar taxes, and other fees and expenses, required to maintain its corporate or other legal existence or privilege of doing
business;
(B) salary,
bonus, severance, indemnity and other benefits payable to future, present or former employees, directors, officers, managers, members,
partners, independent contractors or consultants of any direct or indirect parent company of the Parent Guarantor to the extent such salaries,
bonuses, severance, indemnity and other benefits are attributable to the ownership or operation of the Parent Guarantor and its Restricted
Subsidiaries;
(C) general
organizational, operating, administrative, compliance, overhead, insurance and other costs and expenses (including, without limitation,
expenses related to auditing or other accounting or tax reporting matters), any costs, expenses and liabilities incurred in connection
with any litigation or arbitration attributable to the ownership or operations of the Parent Guarantor or its Restricted Subsidiaries,
and Public Company Costs;
(D) fees
and expenses related to any equity or debt offering, financing transaction, acquisition, divestiture, investment or other non-ordinary
course transaction (whether or not successful) of such parent entity; provided that any such transaction was in the good faith
judgment of the Parent Guarantor intended to be for the benefit of the Parent Guarantor and its Restricted Subsidiaries;
(E) amounts
payable pursuant to the Support and Services Agreement (including any amendment thereto or replacement thereof so long as any such amendment
or replacement is not materially disadvantageous in the good faith judgment of the Parent Guarantor to the Holders when taken as a whole,
as compared to the Support and Services Agreement as in effect immediately prior to such amendment or replacement), solely to the extent
such amounts are not paid directly by the Parent Guarantor or its Subsidiaries;
(F) (i) cash
payments in lieu of issuing fractional shares or interests in connection with the exercise of warrants, options, other equity-based awards
or other securities convertible into or exchangeable for Equity Interests of the Parent Guarantor or any direct or indirect parent company
of the Parent Guarantor and any dividend, split or combination thereof or any transaction permitted under this Indenture and (ii) any
conversion request by a holder of convertible Indebtedness and cash payments in lieu of fractional shares or interests in connection with
any such conversion and payments on convertible Indebtedness in accordance with its terms;
(G) to
finance Investments that would otherwise be permitted to be made pursuant to this Section 4.07 if made by the Parent Guarantor
or its Restricted Subsidiaries; provided that (1) such Restricted Payment shall be made within 120 days of the closing of
such Investment, (2) such direct or indirect parent company shall, promptly following the closing thereof, cause (x) all property
acquired (whether assets or Equity Interests) to be contributed to the capital of the Parent Guarantor or its Restricted Subsidiaries
or (y) the merger, consolidation or amalgamation of the Person formed or acquired into the Parent Guarantor or its Restricted Subsidiaries
(to the extent not prohibited by Section 5.01 hereof) in order to consummate such Investment and (3) any property received
by the Parent Guarantor or its Restricted Subsidiaries shall not increase the amounts available for Restricted Payments pursuant to clause
(B) of Section 4.07(a) hereof;
(H) amounts
that would be permitted to be paid by the Parent Guarantor or its Restricted Subsidiaries under clauses (iii), (iv), (viii),
(ix), (xiii) and (xiv) of Section 4.11(b) hereof; provided that the amount of any dividend or
distribution under this clause (xv)(H) to permit such payment shall reduce, without duplication, Consolidated Net Income of the Parent
Guarantor to the extent, if any, that such payment would have reduced Consolidated Net Income of the Parent Guarantor if such payment
had been made directly by the Parent Guarantor and increase (or, without duplication of any reduction of Consolidated Net Income, decrease)
EBITDA to the extent, if any, that Consolidated Net Income is reduced under this clause (xv)(H) and such payment would have been
added back to (or, to the extent excluded from Consolidated Net Income, would have been deducted from) EBITDA if such payment had been
made directly by the Parent Guarantor, in each case, in the period such payment is made;
(I) amounts
in respect of Indebtedness of such direct or indirect parent company of the Parent Guarantor which is guaranteed by the Parent Guarantor
or a Restricted Subsidiary; and
(J) make
payments for the benefit of the Parent Guarantor or any of its Restricted Subsidiaries to the extent such payments could have been made
by the Parent Guarantor or any of its Restricted Subsidiaries because such payments (i) would not otherwise be Restricted Payments
or (ii) would be Restricted Payments that would be permitted to be made by the Parent Guarantor or any of its Restricted Subsidiaries
pursuant to this covenant; provided that any payment made pursuant to this clause (xv)(J) shall, if applicable, reduce capacity
under the Restricted Payments exception or basket that would have been utilized if such payment were made directly by the Parent Guarantor
or such Restricted Subsidiary;
(xvi) the
distribution, by dividend or otherwise, or other transfer of Capital Stock of an Unrestricted Subsidiary (or a Restricted Subsidiary that
owns one or more Unrestricted Subsidiaries and no other material assets), or Indebtedness owed to the Parent Guarantor or a Restricted
Subsidiary by an Unrestricted Subsidiary (or a Restricted Subsidiary that owns one or more Unrestricted Subsidiaries and no other material
assets), in each case, other than Unrestricted Subsidiaries the primary assets of which are Cash Equivalents received as an Investment
from the Parent Guarantor or a Restricted Subsidiary;
(xvii) mandatory
redemptions of Disqualified Stock issued as a Restricted Payment or as consideration for a Permitted Investment so long as the amount
of such redemptions are no greater than the amount that constituted such Restricted Payment or Permitted Investment;
(xviii) payments
or distributions to dissenting equityholders pursuant to applicable law (including in connection with, or as a result of, exercise of
appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with
any Permitted Investment or a consolidation, merger or transfer of assets that complies with, or is not prohibited by, Section 5.01
hereof;
(xix) the
repurchase, redemption or other acquisition of Equity Interests of the Parent Guarantor or any Restricted Subsidiary deemed to occur
in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution,
share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Parent Guarantor or any Restricted
Subsidiary, in each case, permitted under this Indenture;
(xx) payments
by the Parent Guarantor to any direct or indirect parent of the Parent Guarantor (a) for any taxable period in which the Parent Guarantor
and/or any of its Subsidiaries is a member of a consolidated, combined or similar non-U.S. or U.S. federal, state or local income or similar
tax group that includes the Parent Guarantor and/or its Subsidiaries and whose common parent is a direct or indirect parent of the Parent
Guarantor, to pay the portion of such non-U.S. or U.S. federal, state and/or local income or similar Taxes (as applicable) of such tax
group that are attributable to the Parent Guarantor and/or its Restricted Subsidiaries and, to the extent of any cash amounts actually
received from its Unrestricted Subsidiaries; provided that in each case the amount of such payments in respect of any taxable year
does not exceed the amount that the Parent Guarantor and/or its applicable Restricted Subsidiaries (and, to the extent permitted above,
its applicable Unrestricted Subsidiaries), as applicable, would have been required to pay in respect of the relevant non-U.S. or U.S.
federal, state or local income or similar Taxes for such taxable year had the Parent Guarantor and/or its applicable Subsidiaries (including
its Unrestricted Subsidiaries to the extent described above), as applicable, paid such Taxes separately from any such parent company and
(b) with respect to any taxable period for which the Parent Guarantor is a disregarded entity or partnership for U.S. federal income
tax purposes, in the form of permitted tax distributions to each direct or indirect owner of the Parent Guarantor (as applicable) which
shall be equal to the product of (X) such owner’s allocable share of the taxable income of the Parent Guarantor for such taxable
period (determined, for any taxable period for which the Parent Guarantor is a disregarded entity, as if the Parent Guarantor were a partnership),
reduced (without duplication) by such owner’s allocable share of any taxable loss of the Parent Guarantor for any prior taxable
period ending after the Issue Date to the extent such taxable loss is of a character that would permit such loss to be deducted against
the taxable income in the current taxable period and (Y) the highest combined marginal federal, state and local income tax rate applicable
to any direct or indirect equity owner of the Parent Guarantor for such taxable period (taking into account the character (long-term capital
gain, qualified dividend income, tax-exempt income, etc.) of the current period taxable income); provided that any such distributions
shall be made on a pro rata basis;
(xxi) any
Restricted Payment made in connection with a Permitted Change of Control and any Permitted Intercompany Activities;
(xxii) (i) the
declaration and payment of any cash dividends by the Parent Guarantor or (ii) the declaration and payment of dividends or distributions
by the Parent Guarantor to, or the making of loans to, any direct or indirect parent company of the Parent Guarantor in amounts required
for any direct or indirect parent company of the Parent Guarantor to declare and pay any cash dividends, in each case of subclauses (i) and
(ii), pursuant to the terms of the applicable certificate of designations to holders of any class or series of Preferred Stock issued
in exchange for Equity Interests of the Asian JV; provided that the aggregate amount of Restricted Payments made under this clause,
(A) shall be unlimited if, after giving pro forma effect to the payment of such Restricted Payment, the Consolidated Total Debt Ratio
is less than or equal to 6.00 to 1.00 and (B) shall not exceed $100.0 million in any calendar year if, after giving pro forma
effect to the payment of such Restricted Payment, the Consolidated Total Debt Ratio is greater than 6.00 to 1.00;
(xxiii) the
Parent Guarantor may make any Restricted Payments to any direct or indirect parent for nominal value per right, of any rights granted
to all holders of Capital Stock of the Parent Guarantor (or any direct or indirect parent of the Parent Guarantor) pursuant to any equityholders’
rights plan adopted for the purpose of protecting equityholders from unfair takeover practices;
(xxiv) the
Restricted Subsidiaries may make Restricted Payments in connection with the acquisition of additional Capital Stock in any Restricted
Subsidiary from minority equityholders; and
(xxv) the
Parent Guarantor may make Restricted Payments to pay for the redemption, discharge, defeasance, retirement, repurchase or other acquisition,
in each case for nominal value, of Capital Stock of any direct or indirect parent of the Parent Guarantor from a former investor of a
business acquired in an Acquisition or other Investment or a current or former employee, officer, director, manager, or consultant or
independent contractor of a business acquired in an Acquisition or other Investment (or their Controlled Investment Affiliates or Immediate
Family Members), which Capital Stock was issued as part of an earn-out or similar arrangement in the acquisition of such business, and
which redemption, acquisition, retirement or repurchase relates the failure of such earn-out to fully vest;
provided
that at the time of, and after giving effect to, (x) any Restricted Payment under clause (xi)(B) of this Section 4.07(b) other
than a Restricted Investment, no Event of Default shall have occurred and be continuing or would occur as a consequence thereof or (y) any
Restricted Investment permitted under clause (xi)(B) of this Section 4.07(b), no Event
of Default under Section 6.01(a)(i), (ii), (vi) or (vii)
hereof shall have occurred and be continuing or would occur as a consequence thereof.
(c) For
purposes of determining compliance with this Section 4.07, in the event that a proposed Restricted Payment (or a portion
thereof) meets the criteria of clauses (i) through (xxv) of Section 4.07(b) hereof and/or one or more
of the clauses contained in the definition of “Permitted Investments,” or is entitled to be made pursuant to Section 4.07(a) hereof,
the Parent Guarantor will be entitled to divide or classify or later divide or reclassify (based on circumstances existing on the date
of such reclassification) such Restricted Payment (or a portion thereof) between such clauses (i) through (xxv) and
such Section 4.07(a) and/or one or more of the clauses contained in the definition of “Permitted Investments,”
in any manner that otherwise complies with this Section 4.07.
(d) The
Parent Guarantor shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the definition of “Unrestricted
Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by
the Parent Guarantor and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated shall be deemed to
be Restricted Payments in an amount determined as set forth in the penultimate sentence of the definition of “Investments.”
Such designation shall be permitted only if a Restricted Payment in such amount would be permitted at such time, pursuant to this Section 4.07,
or pursuant to the definition of “Permitted Investments,” and if such Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. Unrestricted Subsidiaries shall not be subject to any of the restrictive covenants set forth in this Indenture. For the avoidance
of doubt, this Section 4.07 shall not restrict the making of any “AHYDO catch up payment” with respect to,
and required by the terms of, any Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries permitted to be incurred
under the terms of this Indenture.
Section 4.08. Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) The
Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries that is not the Issuer or a Subsidiary Guarantor to,
directly or indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to:
(i) (A) pay
dividends or make any other distributions to the Issuer or any Guarantor on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits or (B) pay any Indebtedness owed to the Issuer or any Guarantor;
(ii) make
loans or advances to the Issuer or any Guarantor; or
(iii) sell,
lease or transfer any of its properties or assets to the Issuer or any Guarantor.
(b) The
restrictions in Section 4.08(a) hereof shall not apply to encumbrances or restrictions existing under or by reason
of:
(i)
encumbrances or restrictions in effect on the Issue Date, including pursuant to the Senior Secured Credit Facilities and the related
documentation and Hedging Obligations;
(ii) this
Indenture, the Notes and the Guarantees;
(iii) Purchase
Money Obligations and Financing Lease Obligations that impose restrictions of the nature discussed in clause (iii) of
Section 4.08(a) hereof on the property so purchased, leased, expanded, constructed, developed, installed,
replaced, relocated, renewed, maintained, upgraded, repaired or improved;
(iv) applicable
law or any applicable rule, regulation or order;
(v) (A) in
the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger, amalgamation or consolidation of
an Unrestricted Subsidiary into the Parent Guarantor or a Restricted Subsidiary or the transfer of all or substantially all of the assets
of an Unrestricted Subsidiary to the Parent Guarantor or a Restricted Subsidiary, any agreement or other instrument of such Unrestricted
Subsidiary (but, in any such case, not created in contemplation thereof) and (B) any agreement or other instrument of a Person acquired
by or merged or consolidated with or into the Parent Guarantor or any of its Restricted Subsidiaries in existence at the time of such
acquisition or at the time it merges with or into the Parent Guarantor or any of its Restricted Subsidiaries or assumed in connection
with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired and its Subsidiaries, or
the property or assets of the Person so acquired and its Subsidiaries or the property or assets so acquired;
(vi) contracts
for the sale or disposition of assets, including sale-leaseback agreements, including customary restrictions with respect to a Subsidiary
of the Parent Guarantor pursuant to an agreement that has been entered into for the sale or disposition of any of the Capital Stock or
assets of such Subsidiary;
(vii) Secured
Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 and Section 4.12
hereof that limit the right of the debtor to dispose of or incur Liens on the assets securing such Indebtedness;
(viii) restrictions
on Cash Equivalents or other deposits or net worth imposed by suppliers, customers or landlords under contracts entered into in the ordinary
course of business or consistent with past practice or arising in connection with any Permitted Liens;
(ix) other
Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are not the Issuer or a Subsidiary Guarantor permitted
to be incurred subsequent to the Issue Date pursuant to the provisions of Section 4.09 hereof;
(x) customary
provisions in joint venture agreements and other similar agreements or arrangements relating to such joint venture;
(xi) provisions
contained in leases, subleases, licenses, sub-licenses or similar agreements, including with respect to intellectual property and other
agreements, in each case, entered into in the ordinary course of business or consistent with industry practices or that in the judgment
of the Issuer would not materially impair the Issuer’s ability to make payments under the Notes when due;
(xii) restrictions
or conditions contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which
the Parent Guarantor or any of its Restricted Subsidiaries is a party entered into in the ordinary course of business or consistent with
past practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Parent Guarantor
or such Restricted Subsidiary that are the subject to such agreement, the payment rights arising thereunder or the proceeds thereof and
does not extend to any other asset or property of the Parent Guarantor or such Restricted Subsidiary or the assets or property of another
Restricted Subsidiary;
(xiii) customary
provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary or the assignment
of any license or sub-license agreement;
(xiv) provisions
restricting assignment of any agreement entered into in the ordinary course of business or consistent with past practice;
(xv) restrictions
arising in connection with cash or other deposits permitted under Section 4.12 hereof;
(xvi) any
agreement or instrument relating to any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred, assumed or issued
subsequent to the Issue Date pursuant to, or that is not prohibited by, Section 4.09 hereof if either (A) the
encumbrances and restrictions are not materially more disadvantageous, taken as a whole, to the Holders than is customary in comparable
financings for similarly situated issuers (as determined in good faith by the Issuer), (B) the encumbrances and restrictions are
not materially more restrictive, taken as whole, with respect to such Restricted Subsidiaries, than the restrictions or encumbrances (x) contained
in this Indenture, the Senior Secured Credit Facilities or related security documents as of the Issue Date or (y) otherwise in effect
on the Issue Date or (C) either (x) the Issuer determines that such encumbrance or restriction will not materially adversely
impair the Issuer’s ability to make principal and interest payments on the Notes as and when they come due or (y) such encumbrances
and restrictions apply only during the continuance of a default in respect of a payment or financial maintenance covenant relating to
such Indebtedness;
(xvii) restrictions
created in connection with any Qualified Securitization Facility;
(xviii) contractual
encumbrances or restrictions under the COLI Loans; and
(xix) any
encumbrances or restrictions of the type referred to in clauses (i), (ii) and (iii) of
Section 4.08(a) hereof imposed by any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (i) through
(xviii) of this Section 4.08(b); provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Issuer,
not materially more restrictive with respect to such encumbrance and other restrictions taken as a whole than those prior to such amendment,
modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
For
purposes of determining compliance with this Section 4.08, (x) the priority of any Preferred Stock in receiving dividends
or liquidating distributions prior to dividends or liquidating distributions being paid on common equity shall not be deemed a restriction
on the ability to make distributions on Capital Stock and (y) the subordination of (including the application of any standstill requirements
to) loans and advances made to the Parent Guarantor or a Restricted Subsidiary to other Indebtedness incurred by the Parent Guarantor
or such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
Section 4.09. Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.
(a) The
Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur”
and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Parent
Guarantor shall not issue any shares of Disqualified Stock and shall not permit any Restricted Subsidiary to issue any shares of Disqualified
Stock or any Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor to issue Preferred Stock; provided that the
Parent Guarantor may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary
may incur Indebtedness (including Acquired Indebtedness) and issue shares of Disqualified Stock and any Restricted Subsidiary that is
not the Issuer or a Subsidiary Guarantor may issue shares of Preferred Stock, if (i) the Fixed Charge Coverage Ratio on a consolidated
basis of the Parent Guarantor and its Restricted Subsidiaries for the most recently ended four fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or
Preferred Stock is issued would have been at least 2.00 to 1.00 or (ii) the Consolidated Total Debt Ratio on a consolidated basis
of the Parent Guarantor and its Restricted Subsidiaries for the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or
Preferred Stock is issued would have been equal to or less than 6.25 to 1.00, in each case determined on a pro forma basis (including
a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock
or Preferred Stock had been issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such
four-quarter period.
(b) The
provisions of Section 4.09(a) hereof shall not apply to:
(i) Indebtedness
incurred pursuant to any Credit Facilities by the Parent Guarantor or any Restricted Subsidiary and the issuance and creation of letters
of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal
amount equal to the face amount thereof); provided that immediately after giving effect to any such incurrence or issuance (including
pro forma application of the net proceeds therefrom), the then outstanding aggregate principal amount of all Indebtedness incurred or
issued under this clause (i) does not exceed the sum of (A) (x) $2,675.0 million, plus, (y) an amount equal
to the greater of (a) $750.0 million and (b) 100.0% of LTM EBITDA, plus, (z) an amount equal to the greater
of (A) $325.0 million and (B) the Borrowing Base, and (B) an additional amount after all amounts have been incurred under
clause (i)(A)(x), if after giving pro forma effect to the incurrence of such additional amount (including a pro forma
application of the net proceeds therefrom), the Consolidated Secured Debt Ratio would have been equal to or less than 6.00 to 1.00; provided
that for purposes of determining the amount that may be incurred under this clause (i)(B) only, all Indebtedness incurred under this
clause (i)(B) shall be deemed to be included in clause (1) of the definition of “Consolidated Secured Debt Ratio”;
(ii) the
incurrence by the Issuer and any Guarantor of Indebtedness represented by the Notes and the Guarantees (but excluding any Additional Notes
and any guarantees thereof);
(iii) Indebtedness,
Disqualified Stock and Preferred Stock of the Parent Guarantor and its Restricted Subsidiaries in existence on the Issue Date (other than
Indebtedness described in clauses (i) and (ii) of this Section 4.09(b));
(iv) (A) Indebtedness
(including Financing Lease Obligations and Purchase Money Obligations), Disqualified Stock and Preferred Stock incurred or issued by the
Parent Guarantor or any of its Restricted Subsidiaries to finance the purchase, lease, expansion, construction, development, installation,
replacement, relocation, renewal, maintenance, upgrade, repair or improvement of property (real or personal), equipment or any other asset,
whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, in an aggregate principal amount
(together with any Refinancing Indebtedness in respect thereof) not to exceed the greater of (a) $230.0 million and (b) 30.0%
of LTM EBITDA (in each case, determined at the date of incurrence or issuance on a pro forma basis (including a pro forma application
of the net proceeds therefrom)); it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to
this clause (iv) shall cease to be deemed incurred or outstanding for purposes of this clause (iv) but
shall be deemed incurred for the purposes of the first paragraph of this covenant from and after the first date on which the Parent Guarantor
or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred Stock under the first paragraph of
this covenant without reliance on this clause (iv) and (B) Financing Lease Obligations arising out of any
Sale and Lease-Back Transaction or lease-leaseback transactions not prohibited by Section 4.10(a);
(v) Indebtedness
incurred by the Parent Guarantor or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters
of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments or other discounting or factoring of
receivables, or similar facilities or similar instruments issued or created, or relating to obligations or liabilities incurred, in the
ordinary course of business or consistent with past practice, including letters of credit in favor of suppliers, customers or trade creditors
or in respect of workers’ compensation claims, performance or surety bonds, 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, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance
or self-insurance;
(vi) Indebtedness,
Disqualified Stock and Preferred Stock arising from (A) Permitted Intercompany Activities and (B) agreements of the Parent Guarantor
or its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn-outs (including contingent earn-outs)
or similar obligations, payment obligations in respect of any non-compete, consulting or similar arrangement or progress payments for
property or services or other similar adjustments, in each case, incurred or assumed in connection with the acquisition or disposition
of any business, assets, a Subsidiary or Investment, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety
bonds, performance bonds or similar instruments securing performance of the Parent Guarantor or any Subsidiary pursuant to such agreements;
(vii) Indebtedness,
Disqualified Stock and Preferred Stock of the Parent Guarantor to a Restricted Subsidiary; provided that any subsequent issuance
or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary
or any other subsequent transfer of any such Indebtedness, Disqualified Stock or Preferred Stock (except to the Parent Guarantor or a
Restricted Subsidiary or any pledge of such Indebtedness, Disqualified Stock or Preferred Stock constituting a Permitted Lien) shall
be deemed, in each case, to be an incurrence of such Indebtedness, Disqualified Stock or Preferred Stock (to the extent such Indebtedness,
Disqualified Stock or Preferred Stock is then outstanding) not permitted by this clause (vii);
(viii) Indebtedness,
Disqualified Stock and Preferred Stock of a Restricted Subsidiary to the Parent Guarantor or another Restricted Subsidiary; provided
that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any subsequent transfer of any such Indebtedness, Disqualified Stock or Preferred Stock (except to the
Parent Guarantor or another Restricted Subsidiary or any pledge of such Indebtedness, Disqualified Stock or Preferred Stock constituting
a Permitted Lien) shall be deemed, in each case, to be an incurrence of such Indebtedness, Disqualified Stock or Preferred Stock (to the
extent such Indebtedness, Disqualified Stock or Preferred Stock is then outstanding) not permitted by this clause (viii);
(ix) [reserved];
(x) Hedging
Obligations or other derivatives (excluding Hedging Obligations or other derivatives entered into for speculative purposes);
(xi) obligations
in respect of self-insurance and obligations in respect of stays, customs, performance, bid, indemnity, appeal, judgment, surety and other
similar bonds or instruments and performance, bankers’ acceptance and completion guarantees and similar obligations provided by
the Parent Guarantor or any of its Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar
instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(xii) (A) Indebtedness
or Disqualified Stock of the Parent Guarantor and Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in
an aggregate principal amount or liquidation preference up to 200% of the Net Cash Proceeds received by the Parent Guarantor or its Restricted
Subsidiaries after the Original Issue Date from the issue or sale of Equity Interests of the Parent Guarantor or contributed to the capital
of the Parent Guarantor (in each case, other than Excluded Contributions, proceeds of Disqualified Stock or sales of Equity Interests
to the Parent Guarantor or any of its Subsidiaries) as determined in accordance with Section 4.07(a)(B)(2) and
Section 4.07(a)(B)(3) hereof to the extent such Net Cash Proceeds have not been applied pursuant to such
clauses to make Restricted Payments pursuant to Section 4.07(a) hereof or to make Permitted Investments
specified in clauses (h), (k), (m), (bb) or (cc) of the definition thereof, and (B) Indebtedness or Disqualified Stock of the Parent
Guarantor and Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation
preference, which, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock
and Preferred Stock then outstanding and incurred pursuant to this clause (xii)(B), does not at any time outstanding exceed the greater
of (x) $300.0 million and (y) 40.0% of LTM EBITDA (in each case, determined on the date of such incurrence); it being understood
that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (xii)(B) shall cease to be deemed
incurred or outstanding for purposes of this clause (xii)(B) but shall be deemed incurred for the purposes of Section 4.09(a) hereof
from and after the first date on which the Parent Guarantor or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified
Stock or Preferred Stock under Section 4.09(a) hereof without reliance on this clause (xii)(B);
(xiii) the
incurrence or issuance by the Parent Guarantor or any Restricted Subsidiary of Indebtedness, Disqualified Stock or Preferred Stock which
serves to extend, replace, refund, refinance, renew or defease any Indebtedness (or unutilized commitment in respect of Indebtedness),
Disqualified Stock or Preferred Stock incurred or issued as permitted under Section 4.09(a) hereof and clauses
(ii), (iii), (iv) and (xii)(A) of this Section 4.09(b),
this clause (xiii) and clauses (xiv) and (xxix) of this Section 4.09(b) or
any Indebtedness, Disqualified Stock or Preferred Stock incurred or issued to so extend, replace, refund, refinance, renew or defease
such Indebtedness (or unutilized commitment in respect of Indebtedness), Disqualified Stock or Preferred Stock, including, in each case,
additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including tender premiums), defeasance costs,
accrued interest or dividends, underwriting or initial purchaser discounts, fees, costs and expenses (including original issue discount,
upfront fees or similar fees) in connection therewith and Indebtedness incurred pursuant to a commitment that refinances any Indebtedness
or unutilized commitment (the “Refinancing Indebtedness”) prior to its respective maturity; provided that such
Refinancing Indebtedness:
(A) other
than in the case of Refinancing Indebtedness of Indebtedness (or unutilized commitments in respect of Indebtedness), Disqualified Stock
or Preferred Stock incurred or issued as permitted under clauses (iii), (iv) and (xii)(a) above, and clause (xiv) below,
revolving Indebtedness and Customary Bridge Loans, has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock
being extended, replaced, refunded, refinanced, renewed or defeased (or requires no or nominal payments in cash (other than interest payments)
prior to the date that is 91 days after the maturity date of the Notes);
(B) to
the extent such Refinancing Indebtedness extends, replaces, refunds, refinances, renews or defeases (i) Indebtedness subordinated
in right of payment to the Notes or any Guarantee thereof, such Refinancing Indebtedness is subordinated in right of payment to the Notes
or the Guarantee thereof at least to the same extent as the Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased
or (ii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be Disqualified Stock or Preferred Stock, respectively;
and
(C) shall
not include:
(1) Indebtedness,
Disqualified Stock or Preferred Stock of a Subsidiary of the Parent Guarantor that is not the Issuer or a Subsidiary Guarantor that refinances
Indebtedness, Disqualified Stock or Preferred Stock of the Issuer;
(2) Indebtedness,
Disqualified Stock or Preferred Stock of a Subsidiary of the Parent Guarantor that is not the Issuer or a Subsidiary Guarantor that refinances
Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary Guarantor; or
(3) Indebtedness
or Disqualified Stock of the Parent Guarantor or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary that refinances
Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary;
provided
further that subclause (A) of this clause (xiii) will not apply to any extension, replacement, refunding, refinancing,
renewal or defeasance of any Credit Facilities or Secured Indebtedness;
(xiv) (A) Indebtedness,
Disqualified Stock or Preferred Stock of the Parent Guarantor or a Restricted Subsidiary incurred or issued to finance an acquisition
(or other purchase of assets) or Investments or (B) Indebtedness, Disqualified Stock or Preferred Stock of Persons that are acquired
by the Parent Guarantor or any Restricted Subsidiary or merged into or consolidated or amalgamated with the Parent Guarantor or a Restricted
Subsidiary in accordance with the terms of this Indenture; provided that in the case of clauses (A) and (B), after giving
effect to such transaction, acquisition, merger, amalgamation, consolidation or Investment, (1) the aggregate amount of such Indebtedness,
Disqualified Stock or Preferred Stock incurred under this subclause (1), together with any Refinancing Indebtedness in respect thereof,
does not exceed the greater of (i) $150.0 million and (ii) 20.0% of LTM EBITDA at any time outstanding (it being understood
that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this subclause (1) shall cease to be deemed incurred
or outstanding for purposes of this subclause (1) but shall be deemed incurred for the purposes of the first paragraph of this covenant
from and after the first date on which the Parent Guarantor or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified
Stock or Preferred Stock under the first paragraph of this covenant without reliance on this subclause (1)) or (2) either (w) the
Parent Guarantor would be permitted to incur at least $1.00 of additional Indebtedness, Disqualified Stock or Preferred Stock pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant, (x) the Fixed Charge Coverage Ratio for
the Parent Guarantor and its Restricted Subsidiaries is equal to or greater than immediately prior to such acquisition, merger, amalgamation,
consolidation or Investment, (y) the Parent Guarantor would be permitted to incur at least $1.00 of additional Indebtedness, Disqualified
Stock or Preferred Stock pursuant to the Consolidated Total Debt Ratio test set forth in Section 4.09(a) hereof
or (z) the Consolidated Total Debt Ratio for the Parent Guarantor and its Restricted Subsidiaries is equal to or less than immediately
prior to such acquisition, merger, amalgamation, consolidation or Investment;
(xv) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient
funds in the ordinary course of business or consistent with past practice;
(xvi) Indebtedness
of the Parent Guarantor or any of its Restricted Subsidiaries supported by a letter of credit issued pursuant to any Credit Facilities,
in a principal amount not in excess of the stated amount of such letter of credit;
(xvii) (A) any
guarantee or co-issuance by the Parent Guarantor or a Restricted Subsidiary of Indebtedness or other obligations of any Restricted Subsidiary
so long as the incurrence of such Indebtedness or other obligations by such Restricted Subsidiary is permitted under the terms of this
Indenture or (B) any guarantee or co-issuance by a Restricted Subsidiary of Indebtedness or other obligations of the Parent Guarantor
so long as the incurrence of such Indebtedness or other obligations by the Parent Guarantor is permitted under or is not prohibited by
the terms of this Indenture;
(xviii) (A) Indebtedness,
Disqualified Stock or Preferred Stock consisting of Indebtedness, Disqualified Stock or Preferred Stock issued by the Parent Guarantor
or any of its Restricted Subsidiaries to future, present or former employees, directors, officers, managers, members, partners, independent
contractors or consultants thereof, their respective Controlled Investment Affiliates or Immediate Family Members, in each case to finance
the purchase or redemption of Equity Interests of the Parent Guarantor or any direct or indirect parent company of the Parent Guarantor
to the extent described in clause (iv) of Section 4.07(b) hereof, and (B) Indebtedness
representing deferred compensation or similar arrangements (1) to any future, present or former employees, directors, officers, managers,
members, partners, independent contractors or consultants of the Parent Guarantor (or any direct or indirect parent thereof) or any of
its Restricted Subsidiaries incurred in the ordinary course of business or consistent with past practice or (2) incurred in connection
with any Investment, acquisition (by merger, consolidation, amalgamation or otherwise) or other transaction or in connection with a Permitted
Change of Control;
(xix) to
the extent constituting Indebtedness, customer deposits and advance payments (including progress premiums) received in the ordinary course
of business or consistent with past practice from customers for goods and services purchased in the ordinary course of business or consistent
with past practice;
(xx) (A) Indebtedness
owed on a short-term basis to banks and other financial institutions incurred in the ordinary course of business or consistent with past
practice of the Parent Guarantor and its Restricted Subsidiaries with such banks or financial institutions that arises in connection with
ordinary banking arrangements to manage cash balances of the Parent Guarantor and its Restricted Subsidiaries and (B) Indebtedness
in respect of Bank Products;
(xxi) Indebtedness
incurred by the Parent Guarantor or a Restricted Subsidiary in connection with bankers’ acceptances, discounted bills of exchange
or the discounting or factoring of receivables or payables for credit management purposes, in each case incurred or undertaken consistent
with past practice or in the ordinary course of business;
(xxii) Indebtedness
of the Parent Guarantor or any of its Restricted Subsidiaries consisting of (A) the financing of insurance premiums, (B) take-or-pay
obligations contained in supply arrangements or (C) obligations to reacquire assets or inventory in connection with customer financing
arrangements, in each case incurred in the ordinary course of business or consistent with past practice;
(xxiii) the
incurrence of Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries of the Parent Guarantor that are not the
Issuer or Subsidiary Guarantors otherwise in an aggregate principal amount or liquidation preference, which, when aggregated with the
principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred
pursuant to this clause (xxiii), does not at any time outstanding exceed the greater of (a) $275.0 million
and (b) 35.0% of LTM EBITDA (in each case, determined on the date of such incurrence); it being understood that any Indebtedness,
Disqualified Stock or Preferred Stock incurred pursuant to this clause (xxiii) shall cease to be deemed incurred or outstanding
for purposes of this clause (xxiii) but shall be deemed incurred for the purposes of Section 4.09(a) hereof
from and after the first date on which the Parent Guarantor or its Restricted Subsidiaries could have incurred such Indebtedness, Disqualified
Stock or Preferred Stock under Section 4.09(a) hereof without reliance on this clause (xxiii);
(xxiv) Indebtedness
of the Parent Guarantor or any of its Restricted Subsidiaries undertaken in connection with cash management and related activities with
respect to any Subsidiary or joint venture in the ordinary course of business or consistent with past practice;
(xxv) Indebtedness,
Disqualified Stock or Preferred Stock of Foreign Subsidiaries of the Parent Guarantor in an aggregate principal amount or liquidation
preference, which, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock
and Preferred Stock then outstanding and incurred pursuant to this clause (xxv), does not at any time outstanding exceed
the greater of (i) $500.0 million and (ii) 10.0% of the total assets of the Foreign Subsidiaries on a consolidated basis (in
each case, determined on the date of such incurrence); it being understood that any Indebtedness, Disqualified Stock or Preferred Stock
incurred pursuant to this clause (xxv) shall cease to be deemed incurred or outstanding for purposes of this clause
(xxv) but shall be deemed incurred for the purposes of Section 4.09(a) hereof from and after the first
date on which the Parent Guarantor or its Restricted Subsidiaries could have incurred such Indebtedness, Disqualified Stock or Preferred
Stock under Section 4.09(a) hereof without reliance on this clause (xxv));
(xxvi) Indebtedness,
Disqualified Stock or Preferred Stock incurred by the Parent Guarantor or any of its Restricted Subsidiaries to the extent that the net
proceeds thereof are deposited with the Trustee at or promptly after the funding of such Indebtedness, Disqualified Stock or Preferred
Stock to satisfy and discharge the Notes or exercise the Issuer’s legal defeasance or covenant defeasance option as described under
Article 8, in each case, in accordance with this Indenture;
(xxvii) Indebtedness
consisting of obligations of the Parent Guarantor or any of its Restricted Subsidiaries under deferred purchase price, earn-outs or other
arrangements incurred by such Person in connection with any acquisition permitted under this Indenture or any other Investment permitted
under this Indenture;
(xxviii) Indebtedness
attributable to (but not incurred to finance) the exercise of appraisal rights and the settlement of any claims or actions (whether actual,
contingent or potential) with respect thereto, in each case, with respect to any transaction permitted under this Indenture;
(xxix) Indebtedness
or Disqualified Stock of the Parent Guarantor and Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in
an aggregate principal amount or liquidation preference, which, when aggregated with the principal amount and liquidation preference of
all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to this clause (xxix),
does not at any time outstanding exceed the Available RP Capacity Amount (determined on the date of such incurrence); it being understood
that any Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (xxix) shall cease
to be deemed incurred or outstanding for purposes of this clause (xxix) but shall be deemed incurred for the purposes
of the first paragraph of this covenant from and after the first date on which the Parent Guarantor or such Restricted Subsidiary could
have incurred such Indebtedness, Disqualified Stock or Preferred Stock under the first paragraph of this covenant without reliance on
this clause (xxix);
(xxx) Indebtedness
or Disqualified Stock of the Parent Guarantor and Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary for
the benefit of joint ventures in an aggregate principal amount or liquidation preference, which, when aggregated with the principal amount
and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred pursuant to
this clause (30), does not at any time outstanding exceed the greater of (i) $150.0 million and (ii) 20.0% of LTM EBITDA (in
each case, determined on the date of such incurrence); it being understood that any Indebtedness, Disqualified Stock or Preferred Stock
incurred pursuant to this clause (xxx) shall cease to be deemed incurred or outstanding for purposes of this clause
(xxx) but shall be deemed incurred for the purposes of the first paragraph of this covenant from and after the
first date on which the Parent Guarantor or such Restricted Subsidiary could have incurred such Indebtedness, Disqualified Stock or Preferred
Stock under the first paragraph of this covenant without reliance on this clause (xxx);
(xxxi) pension
fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business or consistent with past practice
or industry norm;
(xxxii) customer
deposits and advance payments received in the ordinary course of business or consistent with past practice or industry norm from customers
for goods or services purchased in the ordinary course of business or consistent with past practice or industry norm;
(xxxiii) Indebtedness
incurred by the Parent Guarantor or a Restricted Subsidiary as a result of leases entered into by the Parent Guarantor or such Restricted
Subsidiary in the ordinary course of business; and
(xxxiv) Indebtedness
in respect of the Qualified Securitization Facility.
(c) For
purposes of determining compliance with this Section 4.09:
(i) in
the event that an item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) meets the criteria of more than
one of the categories of permitted Indebtedness, Disqualified Stock or Preferred Stock described in clauses (i) through (xxxiv) of
Section 4.09(b) hereof or is entitled to be incurred pursuant to Section 4.09(a) hereof,
the Parent Guarantor, in its sole discretion, may divide or classify, and may from time to time redivide and reclassify, such item of
Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be required to include the amount and type
of such Indebtedness, Disqualified Stock or Preferred Stock in one or more of the clauses under Section 4.09(b) or
under Section 4.09(a) hereof; provided that all term Indebtedness outstanding under the Senior Secured
Credit Facilities on the Issue Date shall be treated as incurred on the Issue Date under clause (i) of Section 4.09(b) hereof;
(ii) the
Parent Guarantor shall be entitled to divide and classify an item of Indebtedness, Disqualified Stock or Preferred Stock in more than
one of the types of Indebtedness, Disqualified Stock or Preferred Stock described in Section 4.09(a) and
Section 4.09(b) hereof;
(iii) guarantees
of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness,
Disqualified Stock or Preferred Stock that is otherwise included in the determination of a particular amount of Indebtedness, Disqualified
Stock or Preferred Stock shall not be included;
(iv) if
obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are incurred pursuant to any Credit
Facility and are being treated as incurred pursuant to any clause of Section 4.09(b) or Section 4.09(a) hereof
and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, Disqualified Stock or
Preferred Stock, then such other Indebtedness, Disqualified Stock or Preferred Stock shall not be included;
(v) the
principal amount of any Disqualified Stock of the Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted
Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any
redemption or repurchase premium) or the liquidation preference thereof; and
(vi) for
purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated First Lien Debt Ratio, the Consolidated Secured Debt Ratio or
the Consolidated Total Debt Ratio, as applicable, in connection with the incurrence of any Indebtedness pursuant to Section 4.09(a) or
Section 4.09(b) hereof or the creation or incurrence of any Lien pursuant to the definition of “Permitted
Liens,” the Issuer may elect, at its option, to treat all or any portion of the committed amount of any Indebtedness (and the issuance
and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof)
or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved
Indebtedness Amount”), as being incurred as of such election date, and, if such Fixed Charge Coverage Ratio, Consolidated First
Lien Debt Ratio, Consolidated Secured Debt Ratio or Consolidated Total Debt Ratio, as applicable, is satisfied with respect thereto on
such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’
acceptances thereunder) will be deemed to be permitted under this Section 4.09 or the definition of “Permitted
Liens,” as applicable, whether or not the Fixed Charge Coverage Ratio, the Consolidated First Lien Debt Ratio, the Consolidated
Secured Debt Ratio or the Consolidated Total Debt Ratio, as applicable, at the actual time of any subsequent borrowing or reborrowing
(or issuance or creation of letters of credit or bankers’ acceptances thereunder) is met; provided that for purposes of subsequent
calculations of the Fixed Charge Coverage Ratio, the Consolidated First Lien Debt Ratio, the Consolidated Secured Debt Ratio or the Consolidated
Total Debt Ratio, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually
outstanding, for so long as such commitments are outstanding or until the Issuer revokes an election of a Reserved Indebtedness Amount.
Accrual of interest or dividends, the accretion
of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional
Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, of the same class shall not be deemed to be an incurrence of
Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 4.09. If Indebtedness, Disqualified Stock or
Preferred Stock originally incurred in reliance upon a percentage of LTM EBITDA under this Section 4.09 is being refinanced
and such refinancing would cause the maximum amount of Indebtedness, Disqualified Stock or Preferred Stock thereunder to be exceeded at
such time, then such refinancing will nevertheless be permitted thereunder and such additional Indebtedness, Disqualified Stock or Preferred
Stock will be deemed to have been incurred under the applicable provision so long as the principal amount or liquidation preference
of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed the principal amount or liquidation preference
of Indebtedness, Disqualified Stock or Preferred Stock being refinanced plus amounts permitted by the next sentence. Any Refinancing Indebtedness
and any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred under this Indenture to refinance Indebtedness incurred
pursuant to clauses (i) through (xxxiv) of Section 4.09(b) hereof shall be deemed to include additional
Indebtedness, Disqualified Stock or Preferred Stock incurred to pay accrued but unpaid interest or dividends, premiums (including tender
premiums), defeasance costs, underwriting or initial purchaser discounts, fees, costs and expenses (including original issue discount,
upfront fees or similar fees) in connection with such refinancing.
For purposes of determining compliance with any
U.S. dollar-denominated restriction on the incurrence of Indebtedness, Disqualified Stock or Preferred Stock, the U.S. Dollar Equivalent
principal amount or liquidation preference of Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency shall
be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness, Disqualified Stock or Preferred Stock
was, at the option of the Issuer, first committed or first incurred or upon execution of the definitive documentation in respect thereof;
provided that if such Indebtedness, Disqualified Stock or Preferred Stock is incurred to refinance other Indebtedness, Disqualified
Stock or Preferred Stock denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount or liquidation preference of such refinancing Indebtedness,
Disqualified Stock or Preferred Stock does not exceed (A) the principal amount or liquidation preference of such Indebtedness, Disqualified
Stock or Preferred Stock being refinanced plus (B) the aggregate amount of accrued but unpaid interest, fees, underwriting or initial
purchaser discounts, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees
or similar fees) incurred in connection with such refinancing.
The principal amount or liquidation preference
of any Indebtedness, Disqualified Stock or Preferred Stock incurred to refinance other Indebtedness, Disqualified Stock or Preferred Stock,
if incurred in a different currency from the Indebtedness, Disqualified Stock or Preferred Stock being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such respective Indebtedness, Disqualified Stock or Preferred
Stock is denominated that is in effect on the date of such refinancing.
This Indenture shall not treat (1) unsecured
Indebtedness as subordinated or junior to Secured Indebtedness merely because it is unsecured or (2) Indebtedness as subordinated
or junior to any other Indebtedness merely because it has a junior priority with respect to the same collateral or because it is secured
by different collateral or issued or guaranteed by other obligors.
Section 4.10. Asset
Sales.
(a) The
Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i) the
Parent Guarantor or such Restricted Subsidiary, as the case may be, receives consideration (including, but not limited to, by way of relief
from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with, such Asset Sale)
at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Parent Guarantor at the time
of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(ii) except
in the case of a Permitted Asset Swap, with respect to any Asset Sale in excess of the greater of (x) $115.0 million and (y) 15.0%
of LTM EBITDA, at least 75.0% of the consideration for such Asset Sale, together with all other Asset Sales since the Issue Date (on a
cumulative basis), received by the Parent Guarantor or such Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents;
provided that the amount of:
(A) the
greater of the principal amount and the carrying value of any liabilities (as reflected on the Parent Guarantor’s or such Restricted
Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto or, if incurred or increased subsequent to the date
of such balance sheet, such liabilities that would have been reflected on the Parent Guarantor’s or such Restricted Subsidiary’s
consolidated balance sheet or in the footnotes thereto if such incurrence or increase had taken place on or prior to the date of such
balance sheet, as determined by the Parent Guarantor) of the Parent Guarantor or such Restricted Subsidiary, other than liabilities that
are by their terms subordinated to the Notes (other than intercompany liabilities owing to a Restricted Subsidiary being disposed of),
that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) pursuant to a written
agreement which releases or indemnifies the Parent Guarantor or such Restricted Subsidiary from such liabilities or (ii) otherwise
cancelled or terminated in connection with the transaction;
(B) any
securities, notes or other obligations or assets received by the Parent Guarantor or such Restricted Subsidiary from such transferee that
are converted or reasonably expected by the Parent Guarantor acting in good faith to be converted by the Parent Guarantor or such Restricted
Subsidiary into Cash Equivalents (to the extent of the Cash Equivalents received or expected to be received) or by their terms are required
to be satisfied for Cash Equivalents within 180 days following the closing of such Asset Sale; and
(C) any
Designated Non-cash Consideration received by the Parent Guarantor or such Restricted Subsidiary in such Asset Sale having an aggregate
fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that
is at that time outstanding, not to exceed the greater of (i) $200.0 million and (ii) 25.0% of LTM EBITDA (net of any non-cash
consideration converted into Cash Equivalents) at the time of the receipt of such Designated Non-cash Consideration (or, at the Issuer’s
option, at the time of contractually agreeing to such Asset Sale), with the fair market value of each item of Designated Non-cash Consideration
being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be Cash Equivalents for
purposes of this provision and for no other purpose.
(b) Within
18 months after the later of (x) the date of any Asset Sale pursuant to Section 4.10(a) and (y) the receipt
of any Net Proceeds of such Asset Sale, the Parent Guarantor or such Restricted Subsidiary, at its option, may apply an amount not to
exceed the Applicable Asset Sale Percentage of the Net Proceeds from such Asset Sale (the “Applicable Proceeds”):
(i) to
reduce or offer to reduce Indebtedness (through a redemption, prepayment, repayment or purchase, as applicable) as follows:
(A) Obligations
under a Credit Facility to the extent such Obligations were incurred under clause (i) of Section 4.09(b) hereof;
(B) Obligations
under Secured Indebtedness (other than Indebtedness owed to the Parent Guarantor or a Restricted Subsidiary);
(C) Obligations
under the Notes or any other Senior Indebtedness of the Parent Guarantor or any Restricted Subsidiary; provided that if the Parent
Guarantor or any Restricted Subsidiary shall so reduce any Senior Indebtedness other than the Notes, the Parent Guarantor or such Restricted
Subsidiary will either (a) reduce Obligations under the Notes on a pro rata basis with such other Senior Indebtedness by, at its
option, (x) redeeming Notes as provided under Section 3.07 hereof or (y) purchasing Notes through open-market purchases
or in privately negotiated transactions at market prices (which may be below par), or (b) make an offer (in accordance with the procedures
set forth in Sections 3.08 and 4.10(c) hereof) to all Holders to purchase their Notes on a ratable basis with such other
Senior Indebtedness for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon
up to the principal amount of Notes to be repurchased;
(D) Obligations
of a Restricted Subsidiary that is not the Issuer or a Subsidiary Guarantor, other than Indebtedness owed to the Parent Guarantor or any
Restricted Subsidiary; or
(E) to
the extent such Applicable Proceeds are from an Asset Sale of property or assets of a Restricted Subsidiary that is not the Issuer or
a Subsidiary Guarantor, Obligations of the Issuer or a Guarantor other than Subordinated Indebtedness and other than Indebtedness owed
to the Parent Guarantor or any Restricted Subsidiary;
provided
that to the extent the Parent Guarantor or any Restricted Subsidiary makes an offer to redeem, prepay, repay or purchase any Obligations
pursuant to any of the foregoing clauses (A)-(E) at a price of no less than 100% of the principal amount thereof, to the extent the
relevant creditors do not accept such offering, the Parent Guarantor and the Restricted Subsidiaries will be deemed to have applied an
amount of the Applicable Proceeds equal to such amount not so accepted in such offer, and such amount shall not increase the amount of
Excess Proceeds (and such amount shall instead constitute Declined Proceeds); or
(ii) to
make (A) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the
acquisition of Capital Stock and results in the Parent Guarantor or any of its Restricted Subsidiaries, as the case may be, owning an
amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (B) capital
expenditures or (C) acquisitions of other properties or assets that, in each of (A), (B) and
(C), are used or useful in a Similar Business or replace the businesses, properties and/or assets that are the subject of such Asset Sale;
provided that the Parent Guarantor or the Issuer may elect to deem Investments, capital expenditures or acquisitions within the
scope of the foregoing clauses (A), (B) or (C), as applicable, that occur prior to the receipt of the Applicable Proceeds to have
been made in accordance with this clause (ii) so long as such deemed Investments, capital expenditures or acquisitions shall have
been made no earlier than the earliest of (x) the notice of such Asset Sale to the Trustee, (y) the execution of a definitive
agreement relating to such Asset Sale or (z) 180 days prior to the consummation of such Asset Sale; or
(iii) any
combination of the foregoing;
provided
that a binding commitment or letter of intent entered into not later than the end of such 18-month period shall be treated as a permitted
application of the Applicable Proceeds from the date of such commitment or letter of intent so long as the Parent Guarantor, or such Restricted
Subsidiary enters into such commitment or letter of intent with the good faith expectation that such Applicable Proceeds will be applied
to satisfy such commitment or letter of intent within six months of the end of such 18-month period (an “Acceptable Commitment”)
or, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Applicable Proceeds are applied
in connection therewith, the Parent Guarantor or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second
Commitment”) within six months of such cancellation or termination; provided further that if any Second Commitment is
later cancelled or terminated for any reason before such Applicable Proceeds are applied, then such Applicable Proceeds shall constitute
Excess Proceeds.
Notwithstanding
any other provisions of this Section 4.10, (i) to the extent that the application of any or all of the Applicable Proceeds
of any Asset Sale or Casualty Event by a Restricted Subsidiary that is not a Subsidiary Guarantor (a “Non-Guarantor Disposition”)
(A) is (x) prohibited or delayed by or would violate or conflict with applicable local law, (y) restricted by applicable
organizational documents or any agreement or (z) subject to other organizational or administrative impediments from being repatriated
to the United States (including, for the avoidance of doubt, restrictions, prohibitions or impediments relating to financial assistance,
corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming and/or cross-streaming
of Cash Equivalents intra-group and relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of the
Parent Guarantor and/or any of its Subsidiaries) or would conflict with the fiduciary and/or statutory duties of such Subsidiary’s
directors (or equivalent Persons), or (B) would result in, or could reasonably be expected to result in, a risk of personal or criminal
liability for any officer, director, employee, manager, member of management or consultant of such Subsidiary, an amount equal to the
portion of such Applicable Proceeds so affected will not be required to be applied in compliance with this Section 4.10, and
such amounts may be retained by the applicable Restricted Subsidiary that is not a Subsidiary Guarantor; provided that if at any
time within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of
such affected Applicable Proceeds is permitted under the applicable local law, the applicable organizational document or agreement or
the applicable other impediment, an amount equal to such amount of Applicable Proceeds so permitted to be repatriated will be promptly
applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether
or not they are repatriated) in compliance with this Section 4.10 or (ii) to the extent that the Parent Guarantor has determined
in good faith that repatriation of any or all of the Applicable Proceeds of any Non-Guarantor Disposition could have a material adverse
tax or cost consequence with respect to such Applicable Proceeds (which, for the avoidance of doubt, includes, but is not limited to,
any prepayment whereby doing so the Parent Guarantor, any Restricted Subsidiary or any of their respective Affiliates and/or their equityholders
would incur a tax liability, including as a result of a tax dividend, a deemed dividend pursuant to Code Section 956 or a withholding
tax), the Applicable Proceeds so affected may be retained by the applicable Restricted Subsidiary that is not a Subsidiary Guarantor and
an amount equal to such Applicable Proceeds will not be required to be applied in compliance with this Section 4.10. The non-application
of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an
Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require the Parent Guarantor or any Subsidiary
to repatriate cash.
(c) Any
Applicable Proceeds (other than any amounts excluded from this Section 4.10 as set forth in the final paragraph of Section 4.10(b))
that are not invested or applied as provided and within the time period set forth in Section 4.10(b) in excess of
the Excess Proceeds Threshold will be deemed to constitute “Excess Proceeds”; provided that any amount of Applicable
Proceeds offered to Holders of the Notes pursuant to Section 4.10(b)(i)(C) shall not be deemed to be Excess Proceeds
without regard to whether such offer is accepted by any Holders and any amount of Applicable Proceeds offered to Holders of the Notes
pursuant Section 4.10(b)(i)(C) hereof that are not accepted shall be deemed to be Declined Proceeds. When the aggregate
amount of such Applicable Proceeds exceeds the greater of (x) $230.0 million and (y) 30.0% of LTM EBITDA in any fiscal year
(the “Excess Proceeds Threshold”), the Issuer shall make an offer (an “Asset Sale Offer”) to all
Holders of the Notes and, if required or permitted by the terms of any Indebtedness that ranks pari passu in right of payment with
the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness, to purchase the maximum aggregate
principal amount (or accreted value, as applicable) of the Notes and such Pari Passu Indebtedness that is, with respect to the Notes only,
in an amount equal to $1,000, or an integral multiple of $1,000 in excess thereof, that may be purchased out of the Excess Proceeds at
an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof,
if less), plus accrued and unpaid interest, if any, to, but excluding, the date fixed for the closing of such offer, in accordance with
the procedures set forth in this Indenture, and in the case of such Pari Passu Indebtedness, at the offer price required by the terms
thereof, in accordance with the procedures set forth in the agreement(s) governing such Pari Passu Indebtedness. The Issuer will
commence an Asset Sale Offer with respect to such Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed the
Excess Proceeds Threshold by delivering to the Holders the notice required pursuant to the terms of this Indenture, with a copy to the
Trustee. The Issuer may satisfy the foregoing obligations with respect to any Applicable Proceeds by making an Asset Sale Offer with respect
to such Applicable Proceeds prior to the time period that may be required by this Indenture with respect to all or a part of the available
Applicable Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance
Offer”).
To the extent that the aggregate amount (or accreted
value, if applicable) of Notes and such Pari Passu Indebtedness, as the case may be, tendered pursuant to an Asset Sale Offer is less
than the amount offered in the Asset Sale Offer (or in the case of an Advance Offer, the Advance Portion), the Issuer may use any remaining
Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) for any purposes not
otherwise prohibited under this Indenture. If the aggregate principal amount (or accreted value, if applicable) of Notes or such Pari
Passu Indebtedness, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Sale Offer (or in
the case of an Advance Offer, the Advance Portion), the Issuer shall purchase the Notes (subject to applicable DTC procedures as to global
notes) and such Pari Passu Indebtedness, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted
value, if applicable) of the Notes or such Pari Passu Indebtedness, as the case may be, tendered with adjustments as necessary so that
no Notes or Pari Passu Indebtedness, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion
of any such Asset Sale Offer (or Advance Offer), the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion)
that resulted in the requirement to make an Asset Sale Offer shall be reset to zero (regardless of whether there are any remaining Excess
Proceeds (or Advance Portion) upon such completion). Additionally, the Issuer may, at its option, make an Asset Sale Offer using Applicable
Proceeds at any time after the consummation of such Asset Sale. Upon consummation or expiration of any Asset Sale Offer (or Advance Offer),
any remaining Applicable Proceeds shall not be deemed Excess Proceeds and the Issuer may use such Applicable Proceeds for any purpose
not otherwise prohibited under this Indenture.
An Asset Sale Offer or Advance Offer may be made
at the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, the Notes and/or the
Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(d) Pending
the final application of the amount of any Applicable Proceeds pursuant to this Section 4.10, the Parent Guarantor and
its Restricted Subsidiaries may temporarily reduce Indebtedness, or otherwise use such Applicable Proceeds in any manner not prohibited
by this Indenture.
(e) The
Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer or
an Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture,
the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations
described in this Indenture by virtue thereof. Notwithstanding the foregoing, the Issuer may rely on any no-action letters issued by the
SEC indicating that the staff of the SEC will not recommend enforcement action in the event of a tender offer satisfies certain conditions.
The provisions of Section 3.08 and this
Section 4.10 may be waived or modified with the written consent of the Required Holders.
Section 4.11. Transactions
with Affiliates.
(a) The
Parent Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee with, any Affiliate of the Parent Guarantor (each of the foregoing,
an “Affiliate Transaction”) involving aggregate payments or consideration in excess of the greater of (x) $75.0
million and (y) 10.0% of LTM EBITDA at such time, unless such Affiliate Transaction is on terms (when taken as a whole) that are
not materially less favorable to the Parent Guarantor or its relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Parent Guarantor or such Restricted Subsidiary with an unrelated Person on an arm’s-length basis
or, if in the good faith judgment of the Parent Guarantor, no comparable transaction is available with which to compare such Affiliate
Transaction and such Affiliate Transaction is otherwise fair to the Parent Guarantor or such Restricted Subsidiary from a financial point
of view and when such transaction is taken in its entirety.
(b) The
provisions of Section 4.11(a) hereof shall not apply to the following:
(i) (A) transactions
between or among the Parent Guarantor or any of its Restricted Subsidiaries (or any entity that becomes a Restricted Subsidiary as a result
of such transaction) and (B) any merger, amalgamation or consolidation of the Parent Guarantor into any direct or indirect parent
company; provided that such merger, amalgamation or consolidation is otherwise consummated in compliance with the terms of this
Indenture;
(ii) Restricted
Payments permitted by Section 4.07 hereof (including any transaction specifically excluded from the definition
of the term “Restricted Payments”) (other than pursuant to Section 4.07(b)(xiii) and Section 4.07(b)(xv)(H) hereof)
and Permitted Investments;
(iii) (A) the
payment of management, consulting, monitoring, transaction, advisory and other fees, indemnities and expenses pursuant to the Support
and Services Agreement (plus any unpaid management, consulting, monitoring, transaction, advisory and other fees, indemnities and expenses
accrued in any prior year) and any termination fees (including any such cash lump sum or present value fee upon the consummation of a
corporate event, including an initial public equity offering) pursuant to the Support and Services Agreement, or any amendment thereto
or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the
Issuer to the Holders when taken as a whole, as compared to the Support and Services Agreement as in effect immediately prior to such
amendment or replacement and (B) the payment of indemnification and other similar amounts to the Investors and reimbursement of expenses
of the Investors;
(iv) (A) employment
agreements, employee benefit and incentive compensation plans and arrangements and (B) the payment of reasonable and customary fees
and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of or for the
benefit of, future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants
(or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Guarantor, any of its direct or indirect
parent companies or any of its Restricted Subsidiaries;
(v) transactions
in which the Parent Guarantor or any of its Restricted Subsidiaries, as the case may be, delivers to the Trustee a letter from an Independent
Financial Advisor stating that such transaction is fair to the Parent Guarantor or such Restricted Subsidiary from a financial point of
view or stating that the terms are not materially less favorable, when taken as a whole, to the Parent Guarantor or its relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction by the Parent Guarantor or such Restricted Subsidiary
with an unrelated Person on an arm’s-length basis;
(vi) any
agreement or arrangement as in effect as of the Issue Date, or any amendment or replacement thereto (so long as any such amendment or
replacement is not materially disadvantageous in the good faith judgment of the Issuer to the Holders when taken as a whole as compared
to the applicable agreement or arrangement as in effect on the Issue Date);
(vii) any
Intercompany License Agreements;
(viii) the
existence of, or the performance by the Parent Guarantor or any of its Restricted Subsidiaries of its obligations under the terms of,
any stockholders, investor rights or similar agreement (including any registration rights agreement or purchase agreement related thereto)
to which it (or any parent company of the Parent Guarantor) is a party as of the Issue Date and any similar agreements which it (or any
parent company of the Parent Guarantor) may enter into thereafter; provided that the existence of, or the performance by the Parent
Guarantor or any of its Restricted Subsidiaries (or such parent company) of, obligations under any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date shall only be permitted by this clause (viii) to the extent
that the terms of any such amendment or new agreement are not otherwise, when taken as a whole, materially disadvantageous in the good
faith judgment of the Parent Guarantor to the Holders than those in effect on the Issue Date;
(ix) [reserved];
(x) transactions
with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services or providers of
employees or other labor that are Affiliates, in each case in the ordinary course of business or that are consistent with past practice
or industry norm and otherwise in compliance with the terms of this Indenture which are fair to the Parent Guarantor and its Restricted
Subsidiaries, in the reasonable determination of the Parent Guarantor, or are on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party;
(xi) the
issuance or transfer of (A) Equity Interests (other than Disqualified Stock) of the Parent Guarantor to any direct or indirect parent
company of the Parent Guarantor or to any Permitted Holder or to any employee, director, officer, manager, member, partner or consultants
(or their respective Affiliates or Immediate Family Members) of the Parent Guarantor, any of its direct or indirect parent companies or
any of its Restricted Subsidiaries and (B) directors’ qualifying shares and shares issued to foreign nationals as required
by applicable law;
(xii) sales
of accounts receivable, or participation therein, or Securitization Assets or related assets and other transactions related thereto in
connection with any Qualified Securitization Facility, factoring arrangements or similar transactions;
(xiii) payments
by the Parent Guarantor or any of its Restricted Subsidiaries to any of the Investors made for any financial advisory, consulting, financing,
underwriting or placement services or in respect of other investment banking activities, including, without limitation, in connection
with acquisitions, divestitures or financing transactions which payments are approved by the Parent Guarantor in good faith;
(xiv) payments
on Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Parent Guarantor and its Restricted Subsidiaries and
Preferred Stock (and cancellation of any thereof) of any Restricted Subsidiary to any future, current or former employee, director, officer,
manager, member, partner or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent
Guarantor, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement that are,
in each case, approved by the Parent Guarantor in good faith; and any employment agreements, stock option plans and other compensatory
arrangements (and any successor plans thereto) and severance arrangements and any supplemental executive retirement benefit plans or
arrangements (including management and/or employee benefit plans or agreements, stock/equity/option plans, management equity plans, subscription
agreements or similar agreements pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights and equity
option or incentive plans and other compensation arrangements) with any such future, present or former employees, directors, officers,
managers, members, partners, independent contractors or consultants (or their respective Controlled Investment Affiliates or Immediate
Family Members) in the ordinary course of business or consistent with past practice or industry norm or as approved by the Parent Guarantor
in good faith;
(xv) (A) investments
by Affiliates in securities or loans or other Indebtedness (or commitments thereof) of the Parent Guarantor or any of its Restricted
Subsidiaries (and payment of out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is
being offered by the Parent Guarantor or such Restricted Subsidiary generally to other investors on the same or more favorable terms,
and (B) payments to Affiliates in respect of securities or loans or other Indebtedness (or commitments thereof) of the Parent Guarantor
or any of its Restricted Subsidiaries contemplated in the foregoing subclause (A) or that were acquired from Persons other than
the Parent Guarantor and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(xvi) payments
to or from, and transactions with, any joint venture or Unrestricted Subsidiary in the ordinary course of business or consistent with
past practice or industry norm (including, without limitation, any cash management activities related thereto);
(xvii) payments
by the Parent Guarantor (and any direct or indirect parent company thereof) and its Subsidiaries pursuant to, or the entry into, tax
sharing agreements among the Parent Guarantor (and any such parent company) and its Subsidiaries, to the extent such payments are permitted
under clause (xx) of Section 4.07(b) hereof;
(xviii) any
lease entered into between the Parent Guarantor or any Restricted Subsidiary, as lessee, and any Affiliate of the Parent Guarantor, as
lessor, which is approved by the Parent Guarantor in good faith;
(xix) intellectual
property licenses and research and development agreements in the ordinary course of business or consistent with past practice;
(xx) the
payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to equityholders of the
Parent Guarantor or any direct or indirect parent thereof pursuant to any equityholders, registration rights or similar agreements;
(xxi) the
pledge of Equity Interests of any Unrestricted Subsidiary to lenders to support the Indebtedness of such Unrestricted Subsidiary owed
to such lenders;
(xxii) Permitted
Intercompany Activities and related transactions;
(xxiii) (A) any
transactions with a Person which would constitute an Affiliate Transaction solely because the Parent Guarantor or its Restricted Subsidiary
owns an equity interest in or otherwise controls such Person or (B) transactions with a Person which would constitute an Affiliate
Transaction solely because a director of such other Person is also a director of the Parent Guarantor or any direct or indirect parent
company; provided that such director abstains from voting as a director of the Parent Guarantor or such direct or indirect parent
company, as the case may be, on any matter including such other Person;
(xxiv) transactions
undertaken in the ordinary course of business pursuant to membership in a purchasing consortium;
(xxv) transactions
related to a Permitted Change of Control, the payment of Permitted Change of Control Costs and the issuance of Equity Interests in connection
with a Permitted Change of Control;
(xxvi) any
transition services arrangement, supply arrangement or similar arrangement entered into in connection with or in contemplation of a disposition
made in accordance with or not prohibited by this Indenture;
(xxvii) a
joint venture which would constitute a transaction with an Affiliate solely as a result of the Parent Guarantor or any Restricted Subsidiary
owning an equity interest or otherwise controlling such joint venture or similar entity;
(xxviii) transactions
with any Debt Fund Affiliate in its capacity as a party to any agreement, document or instrument governing or relating to any Indebtedness
permitted to be incurred pursuant to this Indenture to the extent such Debt Fund Affiliate is being treated no more favorably than all
other lenders thereunder;
(xxix) a
transaction with a Person who was not an Affiliate of the Parent Guarantor or any Restricted Subsidiary before such transaction was entered
into but becomes an Affiliate solely as a result of such transaction;
(xxx) the
existence and performance of agreements and transactions with any Unrestricted Subsidiary that were entered into prior to the designation
of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that the transaction was permitted at the time that it was entered
into with such Restricted Subsidiary (and not entered into in contemplation of such designation) and transactions entered into by an Unrestricted
Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary (and not entered
into in contemplation of such designation);
(xxxi) transactions
undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Parent Guarantor and the Restricted Subsidiaries
and not for the purpose of circumventing any covenant set forth in this Indenture;
(xxxii) transactions
undertaken pursuant to a shared services agreement or pursuant to a membership in a purchasing consortium;
(xxxiii) payment
to any Permitted Holder of out-of-pocket expenses reasonably incurred by such Permitted Holder in connection with any direct or indirect
Investment in the Parent Guarantor and its Subsidiaries;
(xxxiv) any
merger, consolidation or reorganization of the Parent Guarantor or any of its Restricted Subsidiaries (otherwise not prohibited by this
Indenture) with an Affiliate of the Parent Guarantor and/or such Restricted Subsidiary solely for the purpose of (i) reorganizing
to facilitate the offering of Capital Stock of the Parent Guarantor or any direct or indirect parent thereof, (ii) forming or collapsing
a holding company structure or (iii) reorganizing the Parent Guarantor or such Restricted Subsidiary in a new jurisdiction, in each
case, so long as any such merger, consolidation or reorganization has been approved by a majority of the members of the Board of such
Restricted Subsidiary, as applicable, in good faith; and
(xxxv) transactions
with Affiliates solely in their capacity as holders of Indebtedness or Capital Stock of the Parent Guarantor or any of its Subsidiaries,
so long as such transaction is with all holders of such class (and there are such non-Affiliate holders) and such Affiliates are treated
no more favorably than all other holders of such class generally.
If the Parent Guarantor or any of its Restricted
Subsidiaries (i) purchases or otherwise acquires assets or properties from a Person which is not an Affiliate, the purchase or acquisition
by an Affiliate of the Parent Guarantor of an interest in all or a portion of the assets or properties acquired shall not be deemed an
Affiliate Transaction (or cause such purchase or acquisition by the Parent Guarantor or a Restricted Subsidiary to be deemed an Affiliate
Transaction) or (ii) sells or otherwise disposes of assets or other properties to a Person who is not an Affiliate, the sale or other
disposition by an Affiliate of the Parent Guarantor of an interest in all or a portion of the assets or properties sold shall not be deemed
an Affiliate Transaction (or cause such sale or other disposition by the Parent Guarantor or a Restricted Subsidiary to be deemed an Affiliate
Transaction).
Section 4.12. Liens.
The Parent Guarantor shall not, and shall not permit the Issuer or any Subsidiary Guarantor to, directly or indirectly, create, incur,
assume or suffer to exist any Lien (except Permitted Liens) (each, a “Subject Lien”) that secures Obligations under
any Indebtedness for borrowed money or any related guarantee of Indebtedness for borrowed money, on any asset or property of the Issuer
or any Guarantor, or any income or profits therefrom, or assign or convey any right to receive income therefrom, unless:
(a) in
the case of Subject Liens securing Subordinated Indebtedness, the Notes and related Guarantees are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Subject Liens; and
(b) in
all other cases, the Notes or Guarantees are equally and ratably secured, except that the foregoing shall not apply to or restrict Liens
securing obligations in respect of the Notes and the related Guarantees.
Any Lien created for the benefit of the Holders
of the Notes pursuant to this Section 4.12 shall be deemed automatically and unconditionally released and discharged upon the
release and discharge of the Subject Lien that gave rise to the obligation to secure the Notes. In addition, in the event that a Subject
Lien is or becomes a Permitted Lien, the Parent Guarantor or the Issuer may, at its option and without consent from any Holder, elect
to release and discharge any Lien created for the benefit of the Holders pursuant to the preceding paragraph in respect of such Subject
Lien.
With respect to any Lien securing Indebtedness
that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness, such Lien shall also be permitted to
secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase
in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original
issue discount, the payment of interest in the form of additional Indebtedness with the same terms, accretion of original issue discount
or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate
of currencies or increases in the value of property securing Indebtedness.
Section 4.13. Company
Existence. Subject to Article 5 hereof, the Parent Guarantor shall do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, and the corporate, partnership, limited liability company or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time)
of the Parent Guarantor or any such Restricted Subsidiary; provided that the Parent Guarantor shall not be required to preserve
the corporate, partnership or other existence of its Restricted Subsidiaries if the Parent Guarantor in good faith shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Parent Guarantor and its Restricted Subsidiaries,
taken as a whole. For the avoidance of doubt, the Parent Guarantor and its Restricted Subsidiaries will be permitted to change their
organizational form.
Section 4.14. Offer
to Repurchase upon Change of Control Triggering Event. If a Change of Control Triggering Event occurs after the Issue Date, unless
the Issuer has previously or concurrently sent a redemption notice with respect to all the outstanding Notes as described under Section 3.07
hereof, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “Change of Control
Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the right of Holders of record
on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Change of Control
Payment Date. Within 60 days following any Change of Control Triggering Event, the Issuer will send (or cause to be sent) notice of such
Change of Control Offer electronically or by first-class mail, with a copy to the Trustee, to each Holder to the address of such Holder
appearing in the Note Register or otherwise in accordance with the Applicable Procedures with the following information:
(a) that
a Change of Control Offer is being made pursuant to this Section 4.14 and that all
Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(b) the
purchase price and the purchase date, which will be no earlier than 10 days nor later than 60 days from the date such notice is sent (the
“Change of Control Payment Date”), except in the case of a conditional Change of Control Offer made in advance of a
Change of Control in accordance with clause (l) of this Section 4.14;
(c) that
any Note not properly tendered will remain outstanding and continue to accrue interest;
(d) that
unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest on the Change of Control Payment Date;
(e) that
Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender such Notes, with the
form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed or otherwise in accordance with
the Applicable Procedures to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business
on the third Business Day preceding the Change of Control Payment Date;
(f) that
Holders whose Notes are being purchased only in part shall be issued new Notes and such new Notes will be equal in principal amount to
the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral
multiple of $1,000 in excess thereof;
(g) if
such notice is delivered prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is
conditional on the occurrence of such Change of Control Triggering Event and shall describe each such condition, and, if applicable, shall
state that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time (including more than 60
days after the notice is sent) as any or all such conditions shall be satisfied or waived, or that such repurchase may not occur and such
notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the Change of Control
Payment Date, or by the Change of Control Payment Date as so delayed, or such notice or offer may be rescinded at any time in the Issuer’s
sole discretion if the Issuer determines that any or all of such conditions will not be satisfied or waived;
(h) any
other instructions, as determined by the Issuer, consistent with this Section 4.14
that a Holder must follow; and
(i) that
Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided
that the Paying Agent receives, not later than the close of business on the tenth Business Day prior to the expiration date of the Change
of Control Offer, a letter (which may be a .pdf delivered electronically) setting forth the name of the Holder of the Notes, the principal
amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes, or a specified portion thereof,
and its election to have such Notes purchased.
While the Notes are in global form and
the Issuer makes an offer to purchase all of the Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect
for the purchase of the Notes or withdraw such election through the facilities of DTC, subject to its rules and regulations.
The notice, if delivered electronically
or mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice.
If (a) the notice is delivered or mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder
receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity
of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Issuer
shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer.
To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this
Indenture by virtue thereof. Notwithstanding the foregoing, the Issuer may rely on any no-action letters issued by the SEC indicating
that the staff of the SEC will not recommend enforcement action in the event a tender offer satisfies certain conditions.
(j) On
the Change of Control Payment Date, the Issuer shall, to the extent permitted by law:
(i) accept for payment all Notes issued by them or portions thereof validly tendered pursuant to the Change of Control Offer;
(ii) deposit
with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered
and not validly withdrawn; and
(iii) deliver,
or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee
stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(k) The
Issuer shall not be required to make a Change of Control Offer following a Change of Control Triggering Event if (i) a third party
makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such
Change of Control Offer or (ii) in connection with or in contemplation of any Change of Control Triggering Event, the Issuer (or
any Affiliate of the Issuer) has made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered
at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered in accordance with
the terms of the Alternate Offer.
(l) Notwithstanding
anything to the contrary herein, a Change of Control Offer or Alternate Offer may be made in advance of a Change of Control Triggering
Event, conditional upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the
time of making of the Change of Control Offer or Alternate Offer.
(m) A
Change of Control Offer or Alternate Offer may be made at the same time as consents are solicited with respect to an amendment, supplement
or waiver of this Indenture, the Notes and/or the Guarantees (but the Change of Control Offer and the Alternate Offer may not condition
tenders on the delivery of such consents).
(n) The
provisions of this Section 4.14, including the definition of “Change of Control,”
may be waived or modified with the written consent of the Required Holders.
Section 4.15. Limitation
on Guarantees of Indebtedness by Restricted Subsidiaries. The Parent Guarantor shall not permit any of its Wholly Owned Subsidiaries
that are Restricted Subsidiaries (and non-Wholly Owned Subsidiaries if such non-Wholly Owned Subsidiaries guarantee other capital markets
debt securities of the Issuer or any Guarantor pursuant to clause (ii) below), other than the Issuer, a Subsidiary Guarantor,
a Captive Insurance Subsidiary, a Foreign Subsidiary, a FSHCO Subsidiary or a Securitization Subsidiary, to guarantee the payment of
(i) any syndicated Credit Facility incurred under Section 4.09(b)(i) hereof or (ii) capital market debt securities
of the Issuer or any Guarantor in an aggregate principal amount in excess of $150.0 million unless:
(a) such
Restricted Subsidiary within 60 days after the guarantee of such Indebtedness executes and delivers a supplemental indenture to this Indenture,
the form of which is attached as Exhibit D hereto, providing for a Guarantee by such Restricted Subsidiary, except that with
respect to a guarantee of Indebtedness of the Issuer or any Guarantor, if such Indebtedness is by its express terms subordinated in right
of payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness
shall be subordinated in right of payment to such Guarantee substantially to the same extent as such Indebtedness is subordinated to the
Notes; and
(b) such
Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement,
indemnity or subrogation or any other applicable rights against the Parent Guarantor or any other Restricted Subsidiary as a result of
any payment by such Restricted Subsidiary under its Guarantee;
provided
that this Section 4.15 shall not be applicable to any guarantee of any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not incurred in connection with, or in contemplation of, such Person becoming
a Restricted Subsidiary. The Parent Guarantor may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required
to be a Subsidiary Guarantor to become a Subsidiary Guarantor, in which case such Subsidiary shall not be required to comply with the
60-day period described in clause (a) of this Section 4.15.
Section 4.16. Suspension
of Covenants.
(a) If
on any date following the Issue Date, (i) the Notes have an Investment Grade Rating from either of the Rating Agencies and (ii) no
Default has occurred and is continuing under this Indenture (the occurrence of the events described in the foregoing clauses (i) and
(ii) being collectively referred to as a “Covenant Suspension Event” and the date thereof being referred to as
the “Suspension Date”), then Section 4.07, Section 4.08, Section 4.09,
Section 4.10, Section 4.11, Section 4.15 and Section 5.01(d) hereof
shall no longer be applicable to the Notes (collectively, the “Suspended Covenants”) until the occurrence of the Reversion
Date.
(b) During
any period that the foregoing covenants have been suspended, the Parent Guarantor may not designate any of its Subsidiaries as Unrestricted
Subsidiaries.
(c) In
the event that the Parent Guarantor and its Restricted Subsidiaries are not subject to the Suspended Covenants under this Indenture for
any period of time as a result of the foregoing, and on any subsequent date (the “Reversion Date”) both of the Rating
Agencies withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating (or for
the avoidance of doubt, only one Rating Agency withdraws its Investment Grade Rating or downgrades that rating assigned to the Notes below
an Investment Grade Rating in the event that such Rating Agency was the only Rating Agency to give an Investment Grade Rating to the Notes),
then the Parent Guarantor and its Restricted Subsidiaries will thereafter again be subject to the Suspended Covenants under this Indenture
with respect to future events. The period of time between the Suspension Date and the Reversion Date is referred to in this Indenture
as the “Suspension Period.” The Guarantees of the Guarantors shall be suspended during the Suspension Period. Additionally,
upon the occurrence of a Covenant Suspension Event, the amount of Excess Proceeds from any Asset Sales shall be reset to zero.
(d) During
the Suspension Period, the Parent Guarantor and its Restricted Subsidiaries will be entitled to incur Liens to the extent provided for
under Section 4.12 hereof (including, without limitation, Permitted Liens) and any Permitted Liens which may refer to
one or more Suspended Covenants shall be interpreted as though such applicable Suspended Covenant(s) continued to be applicable during
the Suspension Period (but solely for purposes of Section 4.12 hereof and the definition of “Permitted Liens”
and for no other covenant).
(e) Notwithstanding
the foregoing, in the event of any such reinstatement, no action taken or omitted to be taken by the Parent Guarantor or any of its Restricted
Subsidiaries prior to such reinstatement will give rise to a Default or Event of Default under this Indenture with respect to the Notes,
and no Default or Event of Default will be deemed to exist or have occurred as a result of any failure by the Parent Guarantor or any
Restricted Subsidiary to comply with any of the Suspended Covenants during the Suspension Period; provided that (i) with respect
to Restricted Payments made after such reinstatement, the amount available to be made as Restricted Payments will be calculated as though
Section 4.07 hereof had been in effect prior to, but not during, the Suspension Period (including with respect to a Limited
Condition Transaction entered into during the Suspension Period); (ii) all Indebtedness incurred or committed, or Disqualified Stock
or Preferred Stock issued, during the Suspension Period (or deemed incurred or issued in connection with a Limited Condition Transaction
entered into during the Suspension Period) will be classified to have been incurred or issued pursuant to clause (iii) of
Section 4.09(b) hereof; (iii) any Affiliate Transaction entered into after such reinstatement pursuant to an
agreement entered into during any Suspension Period shall be deemed to be permitted pursuant to clause (vi) of Section 4.11(b) hereof;
(iv) any encumbrance or restriction on the ability of any Restricted Subsidiary that is not a Guarantor to take any action described
in clauses (i) through (iii) of Section 4.08(a) hereof that becomes effective
during any Suspension Period shall be deemed to be permitted pursuant to clause (i) of Section 4.08(b) hereof;
(v) no Subsidiary of the Parent Guarantor shall be required to comply with Section 4.15 hereof after such reinstatement
with respect to any guarantee or obligation entered into by such Subsidiary during any Suspension Period; and (vi) all Investments
made during the Suspension Period (or deemed made in connection with a Limited Condition Transaction entered into during the Suspension
Period) will be classified to have been made under clause (e) of the definition of “Permitted Investments.”
(f) Notwithstanding
that the Suspended Covenants may be reinstated after the Reversion Date, (1) no Default, Event of Default or breach of any kind will
be deemed to exist under this Indenture, the Notes or the Guarantees with respect to the Suspended Covenants, and none of the Parent Guarantor
or any of its Subsidiaries shall bear any liability for any actions taken or events occurring during the Suspension Period, or any actions
taken at any time pursuant to any contractual obligation arising during any Suspension Period, in each case as a result of a failure to
comply with the Suspended Covenants during the Suspension Period (or, upon termination of the Suspension Period or after that time based
solely on any action taken or event that occurred during the Suspension Period), and (2) following a Reversion Date, the Parent Guarantor
and each Restricted Subsidiary will be permitted, without causing a Default or Event of Default, to honor, comply with or otherwise perform
any contractual commitments or obligations arising during any Suspension Period and to consummate the transactions contemplated thereby.
(g) The
Trustee shall have no duty to (i) monitor the ratings of the Notes, (ii) ascertain whether a Covenant Suspension Event or Reversion
Date has occurred or (iii) notify the Holders of any of the foregoing.
ARTICLE 5
Successors
Section 5.01. Merger,
Consolidation or Sale of All or Substantially All Assets.
(a) The
Parent Guarantor and the Issuer may not consolidate or merge with or into or wind up into, consummate a Division as the Dividing Person
(whether or not the Parent Guarantor or the Issuer, as applicable, is the surviving Person), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) (A) the
Parent Guarantor or the Issuer, as applicable, is the surviving Person or (B) the Person formed by or surviving any such consolidation,
amalgamation, merger or winding up or Division (if other than the Parent Guarantor or the Issuer, as applicable) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been made (such Person being herein called the “Successor
Company”), (1) expressly assumes, in the case of the Parent Guarantor, all of the obligations of the Parent Guarantor under
this Indenture and its Guarantee, or, in the case of the Issuer, all of the obligations of the Issuer under this Indenture and the Notes,
in each case, pursuant to supplemental indentures or other applicable documents or instruments and (2) in the case of the Issuer,
is a Person organized or existing under the laws of the jurisdiction of organization of the Issuer or the laws of the United States, any
state thereof, the District of Columbia or any territory thereof;
(ii) immediately
after such transaction, no Event of Default described in clauses (i), (ii), (vi) or (vii) of Section 6.01(a) exists;
and
(iii) the
Parent Guarantor, the Issuer or, if applicable, the Successor Company shall have delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each as applicable, stating that such consolidation, merger or transfer and such supplemental indentures, if
any, comply with this Indenture.
(b) The
Successor Company shall succeed to, and be substituted for, the Parent Guarantor or the Issuer, as applicable, under this Indenture,
the Guarantees and the Notes, as applicable, and the Parent Guarantor or the Issuer, as applicable, will automatically be released and
discharged from its obligations under this Indenture, the Guarantees and the Notes, as applicable.
(c) Notwithstanding
clause (ii) of Section 5.01(a) hereof:
(i) the
Issuer may consolidate or amalgamate with or merge with or into or wind up into, consummate a Division as the Dividing Person or
sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets to a Guarantor;
(ii) any
Restricted Subsidiary may consolidate or amalgamate with or merge with or into or wind up into, consummate a Division as the Dividing
Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets to the Parent Guarantor,
the Issuer or a Subsidiary Guarantor; and
(iii) the
Parent Guarantor or the Issuer may consolidate or amalgamate with or merge with or into or wind up into, consummate a Division as the
Dividing Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets to an Affiliate
of the Parent Guarantor or the Issuer solely for the purpose of reorganizing the Parent Guarantor or the Issuer in another jurisdiction,
which in the case of the Issuer shall be the United States, any state thereof, the District of Columbia or any territory thereof so long
as the amount of Indebtedness of the Parent Guarantor and its Restricted Subsidiaries is not increased thereby.
(d) Subject
to Section 10.06 hereof, no Subsidiary Guarantor shall, and the Parent Guarantor shall not permit any Subsidiary Guarantor
to, consolidate or merge with or into or wind up into (whether or not such Subsidiary Guarantor is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions,
to any Person unless:
(i) (A) (1) such
Subsidiary Guarantor is the surviving Person or (2) the Person formed by or surviving any such consolidation or merger or winding
up (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will
have been made (such Person being herein called the “Successor Person”) expressly assumes all the obligations of such
Subsidiary Guarantor under this Indenture and such Subsidiary Guarantor’s related Guarantee pursuant to supplemental indentures
or other applicable documents or instruments; and
(B) immediately
after such transaction, no Event of Default described in clauses (i), (ii), (vi) or (vii) of Section 6.01(a) exists;
or
(ii) the
transaction is not prohibited by Section 4.10(a) hereof; or
(iii) in
the case of assets comprised of Equity Interests of Subsidiaries, such Equity Interests are sold, assigned, transferred, leased, conveyed
or otherwise disposed of to the Parent Guarantor or one or more Restricted Subsidiaries.
(e) Subject
to Section 10.06 hereof, the Successor Person shall succeed to, and be substituted for, such Subsidiary Guarantor under
this Indenture and such Subsidiary Guarantor’s Guarantee. Notwithstanding anything else in this Section 5.01, any
Subsidiary Guarantor may (1) merge or consolidate or amalgamate with or into, wind up into, consummate a Division as the Dividing
Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets to the Parent Guarantor
or the Issuer or a Restricted Subsidiary, (2) consolidate or amalgamate with or merge with or into or wind up into, consummate a
Division as the Dividing Person or sell, assign, transfer, lease, convey or otherwise dispose all or part of its properties and assets
to an Affiliate of the Parent Guarantor solely for the purpose of reorganizing such Subsidiary Guarantor in another jurisdiction, (3) convert
into a corporation, partnership, limited partnership, limited liability company, trust or other entity organized or existing under the
laws of the jurisdiction of organization of such Subsidiary Guarantor or (4) liquidate, wind up or dissolve or change its legal form
if the Parent Guarantor or the Issuer determines in good faith that such action is in the best interests of the Parent Guarantor or the
Issuer, in each case, without regard to the requirements set forth in Section 5.01(a) and Section 5.01(d) hereof.
Notwithstanding anything to the contrary in this Section 5.01, the Parent Guarantor may contribute or cause to be contributed
Capital Stock of any or all of its Subsidiaries to the Issuer or any Guarantor.
(f) Notwithstanding
the foregoing, Section 5.01(a) will not apply with respect to the sale, assignment,
transfer, lease, conveyance or other disposition of substantially all property or assets of the Parent Guarantor if such sale, assignment,
transfer, lease, conveyance or other disposition also constitutes a Change of Control Triggering Event for which a Change of Control Offer
is made to Holders pursuant to Section 4.14.
Section 5.02. Successor
Person Substituted. Upon any consolidation or merger, winding up, Division, or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of the property or assets of the Parent Guarantor, the Issuer or a Subsidiary Guarantor
in accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Parent
Guarantor, the Issuer or such Subsidiary Guarantor, as applicable, is merged or wound up or formed upon such Division or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, winding up, Division, sale, assignment, transfer, lease, conveyance or other disposition,
the provisions of this Indenture referring to the Parent Guarantor, the Issuer or such Subsidiary Guarantor, as applicable, shall refer
instead to the successor Person, as applicable, and not to the Parent Guarantor, the Issuer or such Subsidiary Guarantor, as applicable),
and may exercise every right and power of the Parent Guarantor, the Issuer or such Subsidiary Guarantor, as applicable, under this Indenture
with the same effect as if such successor Person, as applicable, had been named as the Parent Guarantor, the Issuer or a Subsidiary Guarantor,
as applicable, herein; provided that the predecessor Issuer shall not be relieved from the obligation to pay the principal of
and interest on the Notes, except in the case of a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially
all of the Issuer’s assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
Defaults and Remedies
Section 6.01. Events
of Default.
(a) An
“Event of Default,” wherever used herein, means any one of the following events:
(i) default
in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
(ii) default
for 30 days or more in the payment when due of interest on or with respect to the Notes;
(iii) subject
to Section 4.03(e) hereof, failure by the Issuer or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less than 30.0% in aggregate principal amount of the then outstanding Notes to comply with
any of its obligations, covenants or agreements (other than a default referred to in clauses (i) or (ii) above) contained in
this Indenture or the Notes;
(iv) default
under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for
money borrowed by the Parent Guarantor or any of its Restricted Subsidiaries or the payment of which is guaranteed by the Parent Guarantor
or any of its Restricted Subsidiaries, other than Indebtedness owed to the Parent Guarantor or a Restricted Subsidiary, whether such Indebtedness
or guarantee now exists or is created after the issuance of the Notes, if both:
(A) such
default either results from the failure to pay any principal of such Indebtedness at its stated final maturity (after giving effect to
any applicable grace periods) or relates to an obligation other than the obligation to pay principal of any such Indebtedness at its stated
final maturity and results in the holder or holders of such Indebtedness causing such Indebtedness to become due prior to its stated maturity;
and
(B) the
principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay
principal at stated final maturity (after giving effect to any applicable grace periods), or the maturity of which has been so accelerated,
aggregate the greater of (x) $200.0 million (or its foreign currency equivalent) and (y) 25.0% of LTM EBITDA or more outstanding;
(v) failure
by the Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that together (as of the latest
consolidated financial statements of the Parent Guarantor for a fiscal quarter end provided as required under Section 4.03
hereof) would constitute a Significant Subsidiary) to pay final judgments aggregating in excess of the greater of (x) $200.0 million
and (y) 25.0% of LTM EBITDA (net of amounts covered by insurance policies issued by reputable insurance companies), which final judgments
remain unpaid, undischarged and unstayed for a period of more than 60 days after such judgment becomes final, and in the event such judgment
is covered by insurance, an enforcement proceeding has been commenced by any creditor upon such judgment or decree which is not promptly
stayed;
(vi) the
Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that together (as of the latest consolidated
financial statements of the Parent Guarantor for a fiscal quarter end provided as required under Section 4.03
hereof) would constitute a Significant Subsidiary), pursuant to or within the meaning of any Bankruptcy Law:
(A) commences
proceedings to be adjudicated bankrupt or insolvent;
(B) consents
to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under applicable Bankruptcy Law;
(C) consents
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or other similar official of it or for all or substantially
all of its property;
(D) makes
a general assignment for the benefit of its creditors; or
(E) generally
is not paying its debts as they become due;
(vii) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief against the Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that together
(as of the latest consolidated financial statements of the Parent Guarantor for a fiscal quarter end provided as required under Section 4.03
hereof) would constitute a Significant Subsidiary), in a proceeding in which the Parent Guarantor, the Issuer or any such Subsidiary or
such group of Restricted Subsidiaries is to be adjudicated bankrupt or insolvent;
(B) appoints
a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Parent Guarantor, the Issuer or any Significant
Subsidiary (or any group of Restricted Subsidiaries that together (as of the latest consolidated financial statements of the Parent Guarantor
for a fiscal quarter end provided as required under Section 4.03 hereof) would constitute a Significant Subsidiary), or for
all or substantially all of the property of the Parent Guarantor, the Issuer or any such Significant Subsidiary or such group of Restricted
Subsidiaries; or
(C) orders
the liquidation of the Parent Guarantor, the Issuer or any Significant Subsidiary (or any group of Restricted Subsidiaries that together
(as of the latest consolidated financial statements of the Parent Guarantor for a fiscal quarter end provided as required under Section 4.03
hereof) would constitute a Significant Subsidiary);
and the order or decree remains unstayed and in effect for
60 consecutive days; and
(viii) the
Guarantee of any Subsidiary Guarantor that is a Significant Subsidiary (or any group of Subsidiary Guarantors that together (as of the
latest consolidated financial statements of the Parent Guarantor for a fiscal quarter end provided as required under Section 4.03
hereof) would constitute a Significant Subsidiary) shall for any reason cease to be in full force and effect or be declared null and void
or any responsible officer of any Subsidiary Guarantor that is a Significant Subsidiary (or the responsible officers of any group of Subsidiary
Guarantors that together (as of the latest consolidated financial statements of the Parent Guarantor for a fiscal quarter end provided
as required under Section 4.03 hereof) would constitute a Significant Subsidiary), as the case may be, denies
in writing that it has any further liability under its Guarantee or gives written notice to such effect, other than by reason of the termination
of this Indenture or the release of any such Guarantee in accordance with this Indenture.
(b) In
the event of any Event of Default specified in clauses (iii), (iv), (v) or (viii) of Section 6.01(a) hereof,
such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of
the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if after such
Event of Default arose:
(i) the
Indebtedness or guarantee that is the basis for such Event of Default has been discharged;
(ii) the
requisite number of holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such
Event of Default; or
(iii) the
default that is the basis for such Event of Default has been cured.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default of the type specified in clause (vi) or (vii) of Section 6.01(a) hereof)
occurs and is continuing under this Indenture, the Trustee or the Holders of not less than 30.0% in aggregate principal amount of all
the then outstanding Notes may, by notice to the Issuer and the Trustee (if given by Holders), in either case specifying in such notice
the respective Event of Default and that such notice is a “notice of acceleration,” declare the principal, premium, if any,
interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately; provided that
no such declaration may be made with respect to any action taken, and reported publicly or to Holders, more than two years prior to such
declaration. Any notice of Default under clauses (iii), (iv), (v) or (viii) of Section 6.01(a),
notice of acceleration with respect to an Event of Default under clauses (iii), (iv), (v) or (viii) of
Section 6.01(a), instruction to the Trustee to provide a notice of Default under clauses (iii), (iv), (v) or
(viii) of Section 6.01(a), notice of acceleration with respect to an Event of Default under clauses (iii), (iv),
(v) or (viii) of Section 6.01(a) or instruction to the Trustee to take any other action (or refrain
from taking any action) with respect to an alleged Default or Event of Default under clauses (iii), (iv), (v) or
(viii) of Section 6.01(a) (a “Noteholder Direction”) provided by any one or more Holders
(other than a Regulated Bank) (each, a “Directing Holder”) must be accompanied by a written representation
from each such Holder delivered to the Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or DTC’s
nominee, that such Holder is being instructed solely by beneficial owners that are not) Net Short (a “Position Representation”),
which representation, in the case of a Noteholder Direction relating to delivery of a notice of Default shall be deemed a continuing
representation until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition,
each Directing Holder is deemed, at the time of providing a Noteholder Direction, to covenant to provide the Issuer (with a copy to the
Trustee) with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Directing
Holder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”).
In any case in which the Holder is DTC or DTC’s nominee (after delivery to the Trustee of appropriate confirmation of beneficial
ownership satisfactory to the Trustee), any Position Representation or Verification Covenant required hereunder shall be provided by
the beneficial owner of the Notes in lieu of DTC or DTC’s nominee and DTC shall be entitled to conclusively rely on such Position
Representation and Verification Covenant in delivering its direction to the Trustee.
If, following the delivery of a Noteholder Direction,
but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder
was, at any relevant time, in breach of its Position Representation and the Issuer or the Parent Guarantor provides to the Trustee an
Officer’s Certificate certifying that the Issuer or the Parent Guarantor has (i) a good faith reasonable basis to believe that
one or more Directing Holders were at any relevant time in breach of their Position Representation or their Verification Covenant and
(ii) initiated proceedings in a court of competent jurisdiction seeking a determination that such Directing Holders were, at such
time, in breach of their Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder
Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of
Default shall be automatically reinstituted and any remedy stayed pending a final and nonappealable determination of a court of competent
jurisdiction on such matter. If such Officer’s Certificate has been delivered to the Trustee, the Trustee shall refrain from acting
in accordance with such Noteholder Direction until such time as the Issuer provides to the Trustee an Officer’s Certificate stating
that (i) such Directing Holders have satisfied their Verification Covenant or (ii) such Directing Holders have failed to satisfy
their Verification Covenant, and during such time the cure period with respect to any Default shall be automatically stayed and the cure
period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted
and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such
Directing Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Directing
Holder, the percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to
validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity such Holder may
have offered or provided to the Trustee), with the effect that such Event of Default shall be deemed never to have occurred, and any related
acceleration rescinded, and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such alleged Default
or Event of Default, shall not be permitted to act thereon and shall be restricted from accepting and acting on any future Noteholder
Direction in relation to such Event of Default. If the Directing Holder has satisfied its Verification Covenant, then the Trustee shall
be permitted to act in accordance with such Noteholder Direction. Notwithstanding the above, if such Directing Holder’s participation
is not required to achieve the requisite level of consent of Holders required under this Indenture to give such Noteholder Direction,
the Trustee shall be permitted to act in accordance with such Noteholder Direction notwithstanding any action taken or to be taken by
the Issuer (as described above). The Trustee shall be entitled to conclusively rely on any Noteholder Direction or Officer’s Certificate
delivered to it in accordance with this Indenture and shall have no duty to inquire as to or investigate the accuracy of any Position
Representation, enforce compliance with any Verification Covenant, verify any statements in any Officer’s Certificate delivered
to it, or otherwise make calculations, investigations or determinations with respect to a Derivative Instrument, Net Short position, Long
Derivative Instrument, Short Derivative Instrument or otherwise. The Trustee shall have no liability to the Issuer, any Holder or any
other Person in acting in good faith on a Noteholder Direction.
Notwithstanding anything in the preceding two paragraphs
to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default as the result of Section 6.01(a)(vi) or
(vii) shall not require compliance with this Section 6.02. In addition, for the avoidance of doubt, this Section 6.02
shall not apply to any Holder that is a Regulated Bank.
Each Holder by accepting a Note acknowledges and
agrees that the Trustee (and any agent) shall not be liable to any person for acting or refraining to act in accordance with (i) this
Section 6.02, (ii) any Noteholder Direction, (iii) any Officer’s Certificate or (iv) its duties under this
Indenture, as the Trustee may determine in its sole discretion. The Trustee shall not have any obligation (i) to monitor, investigate,
verify or otherwise determine if a Holder has a Net Short position, (ii) investigate the accuracy or authenticity of any Position
Representation, (iii) inquire if the Issuer will seek action to determine if a Directing Holder has breached its Position Representation,
(iv) enforce any Verification Covenant, (v) monitor any court proceedings undertaken in connection therewith, (vi) monitor
or investigate whether any Default or Event of Default has been publicly reported or (vii) otherwise make any calculations, investigations
or determinations with respect to any Derivative Instruments, Net Short positions, Long Derivative Instruments, Short Derivative Instruments
or otherwise.
Upon the effectiveness of such declaration, or
in the case of clauses (iii), (iv), (v) or (viii) of Section 6.01(a) hereof, upon a valid
Noteholder Direction, to accelerate the Notes, such principal of and premium, if any, and interest will be due and payable immediately.
Notwithstanding
the foregoing, in the case of an Event of Default arising under clause (vi) or (vii) of Section 6.01(a) hereof,
all outstanding Notes will become due and payable without further action or notice. The Trustee may withhold from the Holders notice of
any continuing Default, except a Default relating to the payment of principal, premium, if any, or interest, if it determines that withholding
notice is in their interest.
Section 6.03. Other
Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver
of Past Defaults. Subject to Section 6.02, the Required Holders, by written notice to the Trustee (with a copy to the Issuer,
provided that any waiver or rescission under this Section 6.04 shall be valid and binding notwithstanding the failure
to provide a copy of such notice to the Issuer) may on behalf of the Holders of all of the Notes waive any existing Default and its consequences
under this Indenture (including in connection with an Asset Sale Offer, an Advance Offer, a Change of Control Offer or an Alternate Offer)
and rescind any acceleration with respect to the Notes and its consequences under this Indenture (except if such rescission would conflict
with any judgment of a court of competent jurisdiction and except a continuing Default in the payment of interest on, premium, if any,
or the principal of, any Note held by a non-consenting Holder). Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereto.
Section 6.05. Control
by Majority. Subject to Section 6.02 and Section 7.01(e) hereof, the Required Holders may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or of exercising any trust or power
conferred on the Trustee, and the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is
unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability and may take any other action
that is not inconsistent with any such direction received from Holders of the Notes (it being understood that the Trustee does not have
an affirmative duty to determine whether any action is prejudicial to any Holder).
Section 6.06. Limitation
on Suits. Except to enforce the right to receive payment of principal, premium (if any) or interest when due on or after the respective
due dates expressed in an outstanding Note, no Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:
(a) such
Holder has previously given the Trustee written notice that an Event of Default is continuing and, if such Event of Default is in respect
of clauses (iii), (iv), (v) or
(viii) of Section 6.01(a) hereof,
such Holder is not in breach of a Position Representation or Verification Covenant;
(b) the
Holders, or in the case of clauses (iii), (iv),
(v) or (viii) of Section 6.01(a) hereof,
Directing Holders that are not in breach of a Position Representation or Verification Covenant, comprising at least 30.0% in the aggregate
principal amount of the then outstanding Notes have requested in writing the Trustee to pursue the remedy;
(c) Holders
of the Notes have offered, and if requested, provided the Trustee security or indemnity satisfactory to it against any loss, liability
or expense;
(d) the
Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(e) the
Required Holders have not given the Trustee a direction inconsistent with such written request within such 60-day period.
Section 6.07. Right
of Holders to Sue for Payment. Notwithstanding any other provision of this Indenture, the contractual right expressly set forth in
this Indenture or the Notes of any Holder of a Note to bring suit for the enforcement of any payment on or with respect to such Holder’s
Notes on or after the respective due dates expressed in this Indenture or the Notes, shall not be amended without the consent of such
Holder.
Section 6.08. Collection
Suit by Trustee. If an Event of Default specified in Section 6.01(a)(i) or (ii) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount
of principal of, premium, if any, and interest remaining unpaid on, the Notes and interest on overdue principal, if applicable, and,
to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel.
Section 6.09. Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceedings, the Issuer, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
Section 6.10. Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.11. Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12. Trustee
May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee and its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer or
any other obligor upon the Notes (including the Guarantors), their creditors or their property and shall be entitled and empowered to
participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents and counsel, and any other amounts due the Trustee under Section 7.06 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee and its agents and counsel, and any other amounts
due the Trustee under Section 7.06 hereof out of the estate in any such proceeding, shall be denied for any reason, payment
of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.13. Priorities.
If the Trustee or any Agent collects any money or property pursuant to this Article 6, it shall pay out the money or property
in the following order:
(a) FIRST,
to the Trustee, such Agent and their respective agents and attorneys for amounts due under Section 7.06
hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee or such Agent
and the costs and expenses of collection;
(b) SECOND,
to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(c) THIRD,
to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 6.13.
Section 6.14. Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to
Section 6.07 hereof or a suit by Holders of more than 10.0% in principal amount of the then outstanding Notes.
Section 6.15 Underlying
Cure. Any Default or Event of Default resulting from the failure to deliver a notice, report or certificate under this Indenture
shall cease to exist and be cured in all respects if the underlying Default or Event of Default giving rise to such notice, report or
certificate requirement shall have ceased to exist and/or be cured (including pursuant to Section 6.04). For the avoidance
of doubt, each of the parties hereto agree that any court of competent jurisdiction may (x) extend or stay any grace period set
forth in this Indenture prior to when any actual or alleged Default becomes an actual or alleged Event of Default or (y) stay the
exercise of remedies by the Trustee or Holders contemplated by this Indenture or otherwise upon the occurrence of an actual or alleged
Event of Default, in each case of clauses (x) and (y), in accordance with the requirements of applicable law.
ARTICLE 7
Trustee and Agents
Section 7.01. Duties
of Trustee.
(a) If
an Event of Default, of which a Responsible Officer of the Trustee shall have actual knowledge, has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) the
duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no implied covenants, duties or obligations shall be read
into this Indenture against the Trustee; and
(ii) in
the absence of willful misconduct or bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not investigate or confirm the accuracy of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) this
paragraph (c) does not limit the effect of paragraph (b) of this Section 7.01;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of
competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.02, 6.04 or 6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.01 and Section 7.02(f).
(e) The
Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any
of the Holders unless the Holders have offered and, if requested, provided to the Trustee indemnity or security satisfactory to the Trustee
against any loss, liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02. Rights
of Trustee.
(a) The
Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and premises of the Parent Guarantor and its Restricted Subsidiaries
personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed
by an Officer of the Issuer.
(f) None
of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial
or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if an indemnity satisfactory
to it against such risk or liability is not assured to it.
(g) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee
at the Corporate Trust Office, and such notice references the Notes and this Indenture.
(h) In
no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian and other Person
employed to act hereunder.
(j) [reserved].
(k) Delivery
of reports, information and documents (including, without limitation, reports contemplated under Section 4.03 hereof)
to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any
of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(l) The
permissive rights of the Trustee to take certain actions under this Indenture shall not be construed as a duty or obligation unless so
specified herein, and the Trustee shall not be answerable for any action or inaction other than for its negligence or willful misconduct
in the performance of such action or inaction.
(m) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document unless requested in writing
to do so by the Required Holders, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Issuer, personally or by agent or attorney, at the expense of the Issuer and shall
incur no liability of any kind by reason of such inquiry or investigation.
(n) The
Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any
Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously
delivered and not superseded.
(o) The
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God;
earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; loss or malfunction of utilities,
computer (hardware or software) or communication services; strikes or similar labor disputes; and acts of civil or military authorities
and governmental action.
(p) The
Trustee shall have no duty to inquire as to the performance of the Parent Guarantor with respect to the covenants contained in Article 4
or to make any calculation in connection therewith or in connection with any redemption of the Notes. In addition, except as otherwise
expressly provided herein, the Trustee shall have no obligation to monitor or verify compliance by the Parent Guarantor, the Issuer or
any Subsidiary Guarantor with any other obligation or covenant under this Indenture or the unavailability of the Federal Reserve Bank
wire or facsimile or other wire communication facility.
(q) The
Trustee shall not have any responsibility for the validity, perfection, priority, filing, continuation or enforceability of any Lien
or security interest and shall have no obligations to take any action to procure or maintain such validity, perfection, priority, filing,
continuation or enforceability (it being understood that such responsibility and obligation are the Issuer’s).
(r) The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
Section 7.03. Individual
Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuer or any of its Affiliates with the same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest (as such term is used in the Trust Indenture Act), it must eliminate such conflict within 90
days or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Section 7.09 hereof.
Section 7.04. Trustee’s
Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or
upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate
of authentication.
The Trustee does not assume any responsibility
for any failure or delay in performance or any breach by the Issuer or any Guarantor under this Indenture. The Trustee shall not be responsible
to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in this Indenture
or in any certificate, report, statement, or other document referred to or provided for in, or received by the Trustee under or in connection
with, this Indenture; the validity, enforceability or collectability of any Obligations; the assets, liabilities, financial condition,
results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Obligations
under this Indenture.
Section 7.05. Notice
of Defaults. If a Default occurs and is continuing and if it is known to a Responsible Officer of the Trustee, the Trustee shall
deliver to Holders a notice of the Default within 90 days after it occurs, unless such Default shall have been cured or waived, or if
discovered after 90 days, promptly thereafter. The Trustee may withhold from the Holders notice of any continuing Default, except a Default
relating to the payment of principal, premium, if any, or interest, if it determines that withholding notice is in their interest.
Section 7.06. Compensation
and Indemnity. The Issuer shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services
hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee promptly upon request for all out-of-pocket disbursements,
advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.
The Issuer and the Guarantors, jointly and severally,
shall indemnify the Trustee and its officers, directors, employees and agents and any predecessor trustee and its officers, directors,
employees and agents for, and hold the Trustee harmless against, any and all loss, damage, claims, liability or expense (including reasonable
attorneys’ fees and expenses) incurred by it in connection with the acceptance or administration of this trust and the performance
of its duties hereunder (including the reasonable costs and expenses of enforcing this Indenture against the Issuer or any of the Guarantors
(including this Section 7.06) or defending itself against any claim whether asserted by any Holder, the Issuer or any Guarantor,
or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder) (but excluding taxes
imposed on such Persons in connection with compensation for such administration or performance). The Trustee shall notify the Issuer
promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. Failure by the Trustee
to so notify the Issuer shall not relieve the Issuer or the Guarantors of their obligations hereunder. The Issuer shall defend the claim
and the Trustee may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. Neither the Issuer
nor any Guarantor need reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the
Trustee’s own willful misconduct, gross negligence or bad faith. Neither the Issuer nor any Guarantor need pay for any settlement
made without its consent.
The obligations of the Issuer and the Guarantors
under this Section 7.06 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal
of the Trustee.
To secure the payment obligations of the Issuer
and the Guarantors in this Section 7.06, the Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except money or property held in trust to pay principal and interest on particular Notes. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee is requested to act upon instructions
of one or more Holders, the Trustee shall not be required to act in the absence of indemnity against the costs, expenses and liabilities
that may be incurred in compliance with such a request.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(a)(vi) or Section 6.01(a)(vii) hereof occurs, the expenses
and the compensation for the services (including the reasonable fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.
Section 7.07. Replacement
of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section 7.07. The Trustee may resign in writing at any time and
be discharged from the trust hereby created by so notifying the Issuer. The Required Holders may remove the Trustee by so notifying the
Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.09 hereof;
(b) the
Trustee is adjudged bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Required Holders may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within
30 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders
of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written request by any Holder
who has been a Holder for at least six months, fails to comply with Section 7.09 hereof, such Holder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor
Trustee shall deliver a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.06 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.07, the Issuer’s
obligations under Section 7.06 hereof shall continue for the benefit of the retiring Trustee.
Section 7.08. Successor
Trustee by Merger, etc. If the Trustee or Agent consolidates, merges or converts into, or transfers all or substantially all
of its corporate trust business to, another corporation or other entity, the successor entity without any further act shall be the successor
Trustee or Agent. Any corporation or other entity into which the Trustee or any Agent for the time being may be merged or converted shall,
on the date when such merger, conversion, consolidation, sale or transfer becomes effective and to the extent permitted by applicable
law, be a successor Trustee or Agent under this Indenture without the execution or filing of any paper or any further act on the part
of any of the parties to this Indenture. After the effective date, all references in this Indenture to that Trustee or Agent shall be
deemed to be references to that entity.
Section 7.09. Eligibility;
Disqualification. There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws
of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that
is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and
surplus of at least $150,000,000 as set forth in its most recent published annual report of condition.
ARTICLE 8
Legal Defeasance and Covenant Defeasance
Section 8.01. Option
to Effect Legal Defeasance or Covenant Defeasance. The Issuer may, at its option and at any time, elect to have either Section 8.02
or 8.03 hereof applied to all outstanding Notes and all obligations of the Guarantors with respect to the Guarantees upon compliance
with the conditions set forth below in this Article 8.
Section 8.02. Legal
Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02
with respect to the Notes, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from their obligations under this Indenture with respect to all outstanding Notes and the related
Guarantees and all Defaults and Events of Default cured on the date the conditions set forth below are satisfied (“Legal Defeasance”).
For this purpose, Legal Defeasance means that the Issuer and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b) below (it being understood that such Notes
shall not be deemed outstanding for accounting purposes), and to have satisfied all their other obligations under such Notes and this
Indenture including that of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute instruments
reasonably requested by the Issuer acknowledging the same) and to have cured all then existing Defaults and Events of Default, except
for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the
rights of Holders of the Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such
payments are due solely out of the trust created pursuant to this Indenture referred to in Section 8.04
hereof;
(b) the
Issuer’s obligations with respect to Notes concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the
rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s and the Guarantors’ obligations in connection
therewith; and
(d) this
Section 8.02.
Subject to compliance with this Article 8,
the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
Section 8.03. Covenant
Defeasance. Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03,
the Issuer and the Guarantors shall, with respect to the Notes, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from their obligations under Sections 3.08, 4.03, 4.04, 4.05, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 hereof, and clause (ii) of Section 5.01(a) and
Section 5.01(d) hereof with respect to all outstanding Notes and the related Guarantees, on and after the date the conditions
set forth in Section 8.04 hereof are satisfied (“Covenant Defeasance”), and such Notes shall thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other
purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to all outstanding Notes and the related Guarantees, the Issuer and the Guarantors may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes and the Guarantees of the
Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable
to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Section 6.01(a)(iii) (solely
with respect to the covenants that are released upon a Covenant Defeasance), Section 6.01(a)(iv), Section 6.01(a)(v),
Section 6.01(a)(vi) (solely with respect to Restricted Subsidiaries subject thereto), Section 6.01(a)(vii) (solely
with respect to Restricted Subsidiaries subject thereto) and Section 6.01(a)(viii) hereof shall not constitute Default
or Events of Default.
Section 8.04. Conditions
to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.02 or 8.03
hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance with respect to the Notes:
(a) the
Issuer shall irrevocably deposit with the Trustee (or such other entity designated by the Issuer for this purpose), in trust, for the
benefit of the Holders of the Notes, cash in U.S. dollars, U.S. Government Securities, or a combination thereof, in such amount as will
be sufficient, in the opinion of an Independent Financial Advisor, without consideration of any reinvestment to pay the principal of,
premium, if any, and interest due on the Notes on the stated maturity date or on the Redemption Date, as the case may be, of such principal,
premium, if any, or interest on such Notes and the Issuer must specify whether such Notes are being defeased to maturity or to a particular
Redemption Date; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall
be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee (or such other entity designated
by the Issuer for this purpose) equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit
as of the Redemption Date (any such amount, the “Applicable Premium Deficit”) only required to be deposited with the
Trustee (or such other entity designated by the Issuer for this purpose) on or prior to the Redemption Date. Any Applicable Premium Deficit
shall be set forth in an Officer’s Certificate delivered to the Trustee at least one Business Day prior to the date of the deposit
of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(b) in
the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel confirming that, subject to customary
assumptions and exclusions:
(i) the
Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(ii) since
the Issue Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the beneficial owners of the Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in
the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel confirming that, subject to customary
assumptions and exclusions, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is
bound (other than that resulting from any borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance
or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness, and, in each case, the granting of Liens
in connection therewith);
(e) the
Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the
intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
(f) the
Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied with.
Section 8.05. Deposited
Money and U.S. Government Securities to Be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof,
all money and U.S. Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent (including Parent Guarantor or any of its Subsidiaries acting as Paying Agent)
as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium
and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Securities deposited pursuant to Section 8.04
hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes and the related Guarantees.
Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S. Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment
to Issuer. Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, premium, if any, or interest on any Note and remaining unclaimed for two
years after such principal, and premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or
(if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, shall thereupon cease.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture and the
Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02
or 8.03 hereof, as the case may be; provided that if the Issuer makes any payment of principal of, premium, if any, or interest
on any Notes following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
Amendment, Supplement and Waiver
Section 9.01. Without
Consent of Holders. Notwithstanding Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee or this
Indenture to which it is a party) and the Trustee (and any other Agents party thereto (to the extent applicable)), as the case may be,
may amend or supplement this Indenture, the Notes and any Guarantee without the consent of any Holder:
(a) to
cure any ambiguity, omission, mistake, defect or inconsistency;
(b) to
provide for uncertificated Notes in addition to or in place of certificated Notes;
(c) to
comply with Section 5.01 hereof;
(d) to
provide for the assumption of the Issuer’s or any Guarantor’s obligations to the Holders;
(e) to
make any change that would provide any additional rights or benefits to the Holders or that does not materially adversely affect the
legal rights under this Indenture of any such Holder;
(f) to
add or modify covenants for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Guarantor;
(g) to
provide for the issuance of Additional Notes in accordance with the terms of this Indenture;
(h)
to evidence and provide for the acceptance and appointment under this
Indenture of a successor Trustee or a successor Paying Agent hereunder (or any other applicable agent) pursuant to the requirements
hereof;
(i) to
secure the Notes and/or the related Guarantees or to add collateral thereto or enter into any intercreditor agreement in connection therewith;
(j) to
add an obligor or a Guarantor under this Indenture;
(k) to
conform the text of this Indenture, the Notes or any Guarantees to any provision of the “Description of Notes” section of
the Offering Memorandum;
(l) to
make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture,
including, without limitation, to facilitate the issuance and administration of the Notes; provided, however, that such
amendment does not materially and adversely affect the rights of Holders to transfer Notes;
(m) to
release any Guarantor from its Guarantee pursuant to this Indenture when permitted or required by this Indenture;
(n) to
release and discharge any Lien securing the Notes when permitted or required by this Indenture (including pursuant to Section 4.12
hereof); and
(o) to
comply with the rules of any applicable securities depositary.
Upon the request of the Issuer, and upon
receipt by the Trustee of the documents described in Section 7.02 hereof (to the extent requested by the Trustee and
subject to the last sentence of Section 9.05), the Trustee shall join with the Issuer and the Guarantors in the execution
of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall have the right, but not be obligated to, enter into
such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Notwithstanding the foregoing, no Opinion of Counsel or board resolution shall be required in connection with the addition of a
Guarantor under this Indenture upon execution and delivery by such Guarantor and the Trustee of a supplemental indenture to this
Indenture, the form of which is attached as Exhibit D hereto.
Section 9.02. With
Consent of Holders. Except as provided in Section 9.01 and this Section 9.02, (i) the Issuer, the Guarantors
and the Trustee may amend or supplement this Indenture, the Notes and the Guarantees with the consent of the Required Holders (including
consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes) and (ii) subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes (which shall be considered waived only with respect to Notes held by consenting
Holders), except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture,
any Guarantee or the Notes may be waived with the consent of the Required Holders (including consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes).
Upon the request of the Issuer, and upon the filing
with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders as aforesaid, the Trustee shall join with the
Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.
After an amendment, supplement or waiver under
this Section 9.02 becomes effective, the Issuer shall send to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such amended or supplemental indenture or waiver.
Without the consent of each affected Holder of
Notes (including, for purposes of this paragraph, Notes held or beneficially owned by the Issuer or its Affiliates), an amendment or
waiver under this Section 9.02 may not, with respect to any Notes held by a non-consenting Holder:
(a) reduce
the principal amount of such Notes whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the principal of or change the fixed final maturity of any such Note or alter or waive the provisions with respect to the redemption
of such Notes (other than provisions relating to (i) notice periods (to the extent consistent with applicable requirements of clearing
and settlement systems) for redemption and conditions to redemption and (ii) Section 3.08,
Section 4.10 and Section 4.14
hereof);
(c) reduce
the rate of or change the time for payment of interest on any such Note (other than Section 3.08,
Section 4.10 and Section 4.14
hereof);
(d) waive
a Default or Event of Default in the payment of principal of or premium, if any, or interest on such Notes, except a rescission of acceleration
of the Notes by the Required Holders, and a waiver of the payment default that resulted from such acceleration, or in respect of a covenant
or provision contained in this Indenture, the Notes or any Guarantee which cannot be amended or modified without the consent of all affected
Holders;
(e) make
any such Note payable in money other than that stated therein;
(f) make
any change in the provisions of this Indenture relating to waivers of past Defaults;
(g) make
any change in these amendment and waiver provisions;
(h) amend
the contractual right expressly set forth in this Indenture or the Notes of any Holder to institute suit for the enforcement of any payment
on or with respect to such Holder’s Notes on or after the due dates therefor;
(i) make
any change to or modify the ranking of such Notes that would adversely affect the Holders; or
(j) except
as expressly permitted by this Indenture, modify the Guarantees of the Parent Guarantor or any Subsidiary Guarantor that is a Significant
Subsidiary, or any group of Subsidiary Guarantors that, taken together (as of the latest consolidated financial statements of the Parent
Guarantor for a fiscal quarter end provided as required under Section 4.03 hereof),
would constitute a Significant Subsidiary in any manner materially adverse to the Holders of such Notes.
Section 9.03. Revocation
and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every
Holder.
The Issuer may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated
proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more
than 120 days after such record date unless the consent of the requisite number of Holders has been obtained.
Section 9.04. Notation
on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter
authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue
a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.05. Trustee
to Sign Amendments, etc. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9
if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee. Except
as set forth in the last sentence of this Section 9.05, the Issuer may not sign an amendment, supplement or waiver until the
Board of the Issuer approves it. In executing any amendment, supplement or waiver, the Trustee shall be provided with and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 12.02
hereof, an Officer’s Certificate and an Opinion of Counsel each stating that the execution of such amended or supplemental indenture
is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation
of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary exceptions,
and complies with the provisions hereof. Notwithstanding the foregoing, no Opinion of Counsel or resolution shall be required for the
Trustee to execute any supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, adding
a new Guarantor under this Indenture.
Section 9.06. Additional Voting Terms; Calculation of Principal
Amount.
(a) All
Notes issued under this Indenture shall vote and consent together on all matters (as to which any of such Notes may vote) as one class
and no series of Notes will have the right to vote or consent as a separate series on any matter. Determinations as to whether Holders
of the requisite aggregate principal amount of Notes have concurred in any direction, waiver or consent shall be made in accordance with
this Article 9 and Section 9.06(b) hereof.
(b) With
respect to any matter requiring consent, waiver, approval or other action of the Holders of a specified percentage of the principal amount
of all the Notes, such percentage shall be calculated, on the relevant date of determination, by dividing (i) the principal amount,
as of such date of determination, of Notes, the Holders of which have so consented, by (ii) the aggregate principal amount, as of
such date of determination, of the Notes then outstanding, in each case, as determined in accordance with the preceding sentence and
Section 2.08 and Section 2.09 of this Indenture. Any such calculation made pursuant to this Section 9.06(b) shall
be made by the Issuer and delivered to the Trustee pursuant to an Officer’s Certificate.
Section 9.07. No
Impairment of Right of Holders to Receive Payment. For the avoidance of doubt, no amendment to, or deletion of any of the covenants
under, Article 4 or Article 5 or action taken in compliance with the covenants in effect at the time of such action,
shall be deemed to impair or affect any legal rights of any Holders of the Notes to receive payment of principal of or premium, if any,
or interest on the Notes or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes.
ARTICLE 10
Guarantees
Section 10.01. Guarantee.
Subject to this Article 10, from and after the Issue Date, each of the Guarantors hereby, jointly and severally, irrevocably
and unconditionally, as a primary obligor and not merely as a surety, guarantees, on a senior unsecured basis, to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the Obligations of the Issuer hereunder or thereunder, that: (a) the principal of and interest and
premium, if any, on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other Obligations of the Issuer to the
Holders or the Trustee hereunder or under the Notes shall be promptly paid in full, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. All payments under each Guarantee
will be made in U.S. dollars.
The Guarantors hereby agree that their obligations
hereunder are equivalent to the obligations of a primary obligor and shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment
in full of all of the Obligations of the Issuer hereunder or under the Notes). Each Guarantor hereby waives, to the fullest extent permitted
by law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer,
any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee
shall not be discharged except by full payment of the obligations contained in the Notes and this Indenture or by release in accordance
with the provisions of this Indenture.
Each Guarantor also agrees to pay any and all
costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this
Section 10.01.
If any Holder or the Trustee is required by any
court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, then this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Guarantees. Each Guarantor that makes a payment under its
Guarantee shall, to the fullest extent permitted by applicable law, be entitled upon payment in full of all guaranteed obligations under
this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such
payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
Until terminated in accordance with Section 10.06,
each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer
for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at any time payment of the Notes is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as
a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In
the event that any payment or any part thereof is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
In case any provision of any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
The Guarantee issued by any Guarantor shall be
a general senior unsecured obligation of such Guarantor and shall be pari passu in right of payment with all existing and future
Senior Indebtedness of such Guarantor.
Each payment to be made by a Guarantor in respect
of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 10.02. Limitation
on Subsidiary Guarantor Liability. Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal
or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary
Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant
under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf
of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 10, result
in the obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
applicable law or being void or voidable under any law relating to insolvency of debtors.
Section 10.03. Execution
and Delivery. To evidence its Guarantee set forth in Section 10.01 hereof, each Guarantor hereby agrees that this Indenture
(or a supplemental indenture in the form of Exhibit D hereto) shall be executed on behalf of such Guarantor by one of its
authorized officers. Each Guarantor hereby agrees that its Guarantee set forth in Section 10.01 hereof shall remain in full
force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. If an officer whose signature
is on this Indenture (or a supplemental indenture in the form of Exhibit D hereto) no longer holds that office at the time
the Trustee authenticates a Note, the Guarantee of such Guarantor shall be valid nevertheless. The delivery of any Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the
Guarantors. If required by Section 4.15 hereof, the Parent Guarantor shall cause any Restricted Subsidiary to comply with the
provisions of Section 4.15 hereof and this Article 10, to the extent applicable.
Section 10.04. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Guarantor pursuant
to the provisions of Section 10.01 hereof; provided that, if an Event of Default has occurred and is continuing, no
Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts
then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
Section 10.05. Benefits
Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated
by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such
benefits.
Section 10.06. Release
of Guarantees. Each Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and shall thereupon
terminate and be of no further force and effect, and no further action by such Guarantor, the Issuer or the Trustee is required for the
release of such Guarantor’s Guarantee, upon:
(A) in
the case of a Subsidiary Guarantor, any sale, exchange, issuance, disposition or transfer (by merger, amalgamation, consolidation, dividend,
distribution or otherwise) of (x) the Capital Stock of such Subsidiary Guarantor, after which the applicable Subsidiary Guarantor
is no longer a Restricted Subsidiary or (y) all or substantially all the assets of such Subsidiary Guarantor, in each case if such
sale, exchange, issuance, disposition or transfer is made in compliance with or is not prohibited by the applicable provisions of this
Indenture (including any amendments thereof);
(B) the
release or discharge of the guarantee by, or direct obligation of, such Guarantor of Indebtedness under the Senior Secured Credit Facilities,
or the release or discharge of such other guarantee or direct obligation that resulted in the creation of such Guarantee, except a discharge
or release by or as a result of payment under such guarantee or direct obligation (it being understood that a release subject to a contingent
reinstatement will constitute a release for the purposes of this provision, and that if any such Guarantee is so reinstated, such Guarantee
shall also be reinstated, but with respect to the Subsidiary Guarantors, to the extent that such Guarantor would then be required to
provide a Guarantee pursuant to Section 4.15 hereof);
(C) in
the case of a Subsidiary Guarantor, the designation of any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary
in compliance with the applicable provisions of this Indenture or the occurrence of any event following which the Subsidiary Guarantor
is no longer a Restricted Subsidiary in compliance with the applicable provisions of this Indenture;
(D) upon
the merger, amalgamation, consolidation or Division of any Guarantor with and into the Issuer or another Guarantor or upon the liquidation
or winding up of such Guarantor, in each case, in compliance with or in a manner not prohibited by the applicable provisions of this
Indenture;
(E) the
occurrence of a Covenant Suspension Event;
(F) as
provided under Article 9;
(G) the
exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8
hereof or the discharge of the Issuer’s obligations under this Indenture in accordance with the terms of this Indenture; or
(H) in
the case of the Parent Guarantor, if the Parent Guarantor ceases to be the parent of the Issuer as a result of a transaction or designation
permitted pursuant to the definition of the “Parent Guarantor”.
Notwithstanding clause (E) above, if,
after any Covenant Suspension Event, a Reversion Date shall occur, then the Suspension Period with respect to such Covenant Suspension
Event shall terminate and all actions reasonably necessary to provide that the Notes shall have been unconditionally guaranteed by each
Guarantor (with respect to the Subsidiary Guarantors, to the extent such guarantee is required by Section 4.15 hereof) shall
be taken within 90 days after such Reversion Date or as soon as reasonably practicable thereafter.
Upon any occurrence giving rise to a release of
a Guarantee, as specified above, the Trustee, subject to receipt of an Officer’s Certificate from the Issuer and at the Issuer’s
expense, will execute such documents reasonably requested by the Issuer in order to evidence or effect such release, discharge and termination
in respect of such Guarantee. None of the Issuer, the Trustee or any Guarantor will be required to make a notation on the Notes to reflect
any such release, discharge or termination. The Trustee shall not be liable for any such release undertaken in reliance upon any such
Officer’s Certificate.
ARTICLE 11
Satisfaction and Discharge
Section 11.01. Satisfaction
and Discharge. This Indenture with respect to the Notes shall be discharged and shall cease to be of further effect as to all Notes
when either:
(a) all
Notes theretofore authenticated and delivered, except lost, stolen or destroyed Notes which have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust, have been delivered to the Trustee for cancellation; or
(b) (i) all
Notes not theretofore delivered to the Trustee or applicable registrar for cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise, will become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Issuer, and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee (or such
other entity designated by the Issuer for this purpose) as trust funds in trust solely for the benefit of the Holders of the Notes, cash
in U.S. dollars, U.S. Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of
any reinvestment to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee or applicable registrar
for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; provided that upon
any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture
to the extent that an amount is deposited with the Trustee (or such other entity designated by the Issuer for this purpose) equal to
the Applicable Premium calculated as of the date of the notice of redemption, with any Applicable Premium Deficit only required to be
deposited with the Trustee (or such other entity designated by the Issuer for this purpose) on or prior to the Redemption Date. Any Applicable
Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least one Business Day prior to the
date of the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such
redemption;
(ii) the
Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
(iii) the
Issuer has delivered irrevocable instructions to the Trustee (or such other entity designated by the Issuer for this purpose) to apply
the deposited money toward the payment of the Notes at maturity or the Redemption Date, as the case may be.
In addition, the Issuer must deliver an Officer’s
Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Such Opinion of Counsel may rely on such Officer’s Certificate as to matters of fact, including clauses (b)(i), (ii) and
(iii) above.
Notwithstanding the satisfaction and discharge
of this Indenture, the provisions of Section 7.06 shall survive and if money shall have been deposited with the Trustee pursuant
to clause (b)(i) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof
shall survive such satisfaction and discharge.
Section 11.02. Application
of Trust Money. Subject to the provisions of Section 8.06 hereof, all money or U.S. Government Securities deposited with
the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Parent Guarantor or any of its
Subsidiaries acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest for whose payment such money or U.S. Government Securities has been deposited with the Trustee; but such money or
U.S. Government Securities need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply
any money or U.S. Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Issuer’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal
of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders to receive such payment from the money or U.S. Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
Miscellaneous
Section 12.01. Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee to the others is duly given if in writing in English and by publication
on the website or online data system maintained in accordance with Section 4.03 (including the SEC’s EDGAR system; provided
that such publication shall not constitute valid notice with respect to notices or communications by the Issuer or any Guarantor
to the Trustee) or delivered in person or mailed by first-class mail (registered or certified, return receipt requested), facsimile,
electronic mail or other electronic transmission or overnight air courier guaranteeing next day delivery, to the others’ address:
If to the Issuer and/or any Guarantor:
Gates Corporation
1144 Fifteenth Street, Suite 1400
Denver, CO 80202
Attention: Treasurer
With a copy to (which shall not constitute
notice for any purpose under this Indenture):
Simpson Thacher & Bartlett
LLP
425 Lexington Avenue
New York, New York 10017
Facsimile No.: (212) 455-2502
Attention: Jonathan Ozner, Esq.
If to the Trustee, Paying Agent, and
Registrar:
Laurel Casasanta
U.S. Bank Trust Company, National Association
Global Corporate Trust
CityPlace I
185 Asylum Street, 27th Floor
Hartford, Connecticut 06103
Electronic Mail: laurel.casasanta@usbank.com
The Issuer, any Guarantor or the Trustee, by notice
to the others, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those
sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five calendar days
after being deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt is acknowledged, if faxed or sent electronically;
the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery; and on the
date sent to DTC if otherwise given in accordance with the procedures of DTC; provided that any notice or communication delivered
to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall
be electronically delivered, mailed by first-class mail, certified or registered, return receipt requested, by overnight air courier
guaranteeing next day delivery to its address shown on the Note Register kept by the Registrar or otherwise in accordance with the procedures
of DTC. Failure to deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed or otherwise
delivered in the manner provided above within the time prescribed, such notice or communication shall be deemed duly given, whether or
not the addressee receives it.
If the Issuer sends a notice or communication
to Holders, they shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture
or any Note, where this Indenture or any Note provides for notice of any event or any other communication (including any notice of redemption
or repurchase) to a holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
(or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance
with accepted practices at the Depositary.
The Trustee agrees to accept and act upon instructions
or directions pursuant to this Indenture sent by unsecured email, facsimile transmission or other similar unsecured electronic methods;
provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written
instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner and (b) such originally
executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions.
If the party elects to give the Trustee email or facsimile instructions (or instructions by a similar electronic method) and the Trustee
in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses,
costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding
such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees
to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including,
without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 12.02. Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Issuer or any of the Guarantors to the Trustee to
take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee:
(a) an
Officer’s Certificate in form reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.03
hereof) stating that, in the opinion of the signer, all conditions precedent and covenants, if any, provided for in this Indenture relating
to the proposed action have been satisfied; and
(b) an
Opinion of Counsel in form reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.03
hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied; provided
that no such Opinion of Counsel shall be delivered in connection with the issuance of the Initial Notes.
Section 12.03. Statements
Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof) shall include:
(a) a
statement that the Person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion
of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d) a
statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with; provided, however,
that with respect to matters of fact an Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.
Section 12.04. Rules by
Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying
Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.05. No
Personal Liability of Directors, Managers, Officers, Members, Partners, Employees and Equityholders. No past, present or future director,
manager, officer, employee, incorporator, member, partner or direct or indirect equityholder of the Parent Guarantor or any Restricted
Subsidiaries or of any of their direct or indirect parent companies (other than in such equityholder’s capacity as the Issuer or
a Guarantor) shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this Indenture
or any supplemental indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder
by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 12.06. Governing
Law. THIS INDENTURE, THE NOTES AND ANY GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE,
THE NOTES OR ANY GUARANTEE, WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.07. Waiver
of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE (1) AGREES TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF
ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES AND (2) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.08. Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under
this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services or the unavailability
of the Federal Reserve Bank wire or facsimile or other wire or communication facility.
Section 12.09. No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement
of the Parent Guarantor or its Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 12.10. Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its respective successors. All agreements of the Trustee in this
Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise
provided in Section 10.06 hereof.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. Counterpart
Originals; Electronic Signatures. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. This Indenture may be executed in multiple counterparts which, when taken together,
shall constitute one instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmissions
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes. The words “execution,” “signed,” “signature,” “delivery,” and words
of like import or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include
digital signatures provided by DocuSign, Inc., Orbit, Adobe Sign in English (or such other digital signature provider or language
as specified in writing to the Trustee by the Issuer and/or Parent Guarantor), deliveries or the keeping or records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof
or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated
hereunder by electronic means. The Issuer and Parent Guarantor agree to assume all risks arising out of the use of digital signatures
and electronic methods to submit this Indenture or any document to be signed in connection with this indenture to the Trustee, including
without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 12.13. Table
of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 12.14. Trust
Indenture Act. The Issuer and the Guarantors shall not be required to qualify this Indenture under the Trust Indenture Act. The Trust
Indenture Act shall not apply to this Indenture prior to any such qualification, and all references herein to compliance with the Trust
Indenture Act refer to such compliance following any such qualification.
Section 12.15. USA
Patriot Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to
banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including
Section 326 of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Trustee is required to obtain,
verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee.
Accordingly, each of the parties agree to provide to the Trustee, upon its request from time to time, such identifying information and
documentation as may be available for such party in order to enable the Trustee to comply with Applicable AML Law.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first above written.
|
Very truly yours, |
|
|
|
GATES CORPORATION, as the Issuer |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
ATLAS HYDRAULICS LLC |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES ADMINISTRATION CORP. |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES E&S NORTH AMERICA, INC. |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES INDUSTRIAL HOLDCO LIMITED |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Director |
|
|
|
GATES INTERNATIONAL HOLDINGS, LLC |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Authorized Representative |
[Signature page to Indenture]
|
GATES INVESTMENTS, LLC |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES TPU, INC. |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
OMAHA ACQUISITION INC. |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
PHILIPS HOLDING CORPORATION |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
TOMKINS BP US HOLDING CORP. |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
OMAHA HOLDINGS LLC |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
[Signature page to Indenture]
|
GATES HOLDINGS 1 LLC |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES GLOBAL LLC |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
[Signature page to Indenture]
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
|
|
|
By: |
/s/ Laurel Casasanta |
|
|
Name: |
Laurel Casasanta |
|
|
Title: |
Vice President |
[Signature page to Indenture]
Exhibit A
[FORM OF NOTE]
[FACE OF NOTE]
[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable
pursuant to the provisions of the Indenture]
[Insert the Regulation S Temporary Global Note
Legend, if applicable pursuant to the provisions of the Indenture]
CUSIP [____]1
ISIN [____]2
[RULE 144A][REGULATION S] [GLOBAL] NOTE
representing [up to]
$[____]
6.875% Senior Notes due 2029
Gates Corporation, a Delaware corporation, promises to pay to [Cede &
Co.]* or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto]
[of____ United States dollars] on July 1, 2029.
Interest Payment Dates: |
January 1 and July 1, commencing on January 1, 2025 |
|
|
Record Dates: |
December 15 and June 15 |
Additional provisions of this Note are set forth on the other side
of this Note.
* Include
only if the Note is issued in global form.
1 367398 AA2 (144A); U3702M AA1 (Reg S)
2 US367398AA27 (144A); USU3702MAA19 (Reg S)
IN WITNESS HEREOF, the Issuer has caused this
instrument to be duly executed.
Dated:
|
GATES CORPORATION, as the Issuer |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
This is one of the Notes referred to in the within-mentioned Indenture: |
|
|
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
|
|
Date: |
|
[REVERSE OF NOTE]
6.875% Senior Notes due 2029
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest.
Gates Corporation, a Delaware corporation (the “Issuer”), promises to pay interest on the principal amount of this
Note at a rate per annum of 6.875% from June 4, 2024 until maturity. The Issuer will pay interest on this Note semi-annually in
arrears on January 1 and July 1 of each year, beginning January 1, 2025, or, if any such day is not a Business Day, on
the next succeeding Business Day (each, an “Interest Payment Date”). The Issuer will make each interest payment to
the Holder of record of this Note on the immediately preceding December 15 and June 15 (whether or not a Business Day) (each,
a “Record Date”). Interest on this Note will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from and including June 4, 2024. The Issuer will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the rate borne by this
Note; the Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest (without regard to any applicable grace periods) from time to time on demand at the rate borne by this Note. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method
of Payment. The Issuer will pay interest on this Note to the Person who is the registered Holder of this Note at the close of business
on the Record Date (whether or not a Business Day) next preceding the Interest Payment Date, even if this Note is cancelled after such
Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. Cash payments of principal of, premium, if any, and interest on this Note will be payable at the office or agency
of the Issuer maintained for such purpose pursuant to Section 4.02 of the Indenture or, at the option of the Issuer, cash payment
of interest may be made through the Paying Agent by check mailed to the Holders at their respective addresses set forth in the Note Register
of Holders; provided that (a) all cash payments of principal, premium, if any, and interest with respect to Notes represented
by Global Notes registered in the name of or held by DTC or its nominee will be made through the Paying Agent by wire transfer of immediately
available funds to the accounts specified by the registered Holder or Holders thereof and (b) all cash payments of principal, premium,
if any, and interest with respect to certificated Notes may, at the option of the Issuer, be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States of America if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant
due date for payment (or such other date as the Trustee may accept in its discretion). Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. Paying
Agent, Transfer Agent and Registrar. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, will
act as Paying Agent, Transfer Agent and Registrar. The Issuer may change any Paying Agent, Transfer Agent or Registrar without prior
notice to the Holders. The Parent Guarantor or any of its Subsidiaries may act in any such capacity.
4. Indenture.
The Issuer issued the Notes under an Indenture, dated as of June 4, 2024 (as amended, supplemented or otherwise modified from time
to time, the “Indenture”), among the Issuer, the Guarantors party thereto from time to time and the Trustee. This
Note is one of a duly authorized issue of notes of the Issuer designated as their 6.875% Senior Notes due 2029. The Issuer shall be entitled
to issue Additional Notes pursuant to Section 2.01 and Section 4.09 of the Indenture. The terms of the Notes include
those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of
such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
5. Optional
Redemption.
(a) Except
as set forth in clauses (b), (d) and (e) of this paragraph 5 and in Section 3.07(b), (d) and (e) of the
Indenture, the Notes will not be redeemable at the Issuer’s option prior to July 1, 2026.
(b) At
any time prior to July 1, 2026, the Issuer may, at its option, at any time and from time to time, redeem the Notes, in whole
or in part, upon notice in accordance with Section 3.03 of the Indenture, at a redemption price equal to the sum of (A) 100.0%
of the principal amount of the Notes redeemed, plus (B) the Applicable Premium as of the Redemption Date, plus (C) accrued
and unpaid interest, if any, to, but excluding, the Redemption Date, subject to the right of Holders of record on the relevant Record
Date to receive interest due on the Notes on the relevant Interest Payment Date falling prior to or on the Redemption Date.
(c) At
any time on and after July 1, 2026, the Issuer may, at its option, at any time and from time to time, redeem the Notes, in
whole or in part, upon notice in accordance with Section 3.03 of the Indenture, at the redemption prices (expressed as percentages
of principal amount of the Notes to be redeemed) set forth below, plus accrued and unpaid interest, if any, thereon to, but excluding,
the applicable Redemption Date, subject to the right of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date falling prior to or on the Redemption Date, if redeemed during the twelve-month period beginning on July 1
of each of the years indicated below:
Year | |
Redemption Price | |
2026 | |
| 103.438 | % |
2027 | |
| 101.719 | % |
2028 and thereafter | |
| 100.000 | % |
(d) At
any time prior to July 1, 2026, the Issuer may, at its option, at any time and from time to time, redeem (i) an aggregate
principal amount of Notes not to exceed the amount of the Net Cash Proceeds received by the Parent Guarantor from one or more Equity
Offerings or a capital contribution to the Parent Guarantor made with the Net Cash Proceeds of one or more Equity Offerings, upon notice
in accordance with Section 3.03 hereof, at a redemption price equal to (i) 106.875% of the aggregate principal amount
of the Notes redeemed, plus (ii) accrued and unpaid interest, if any, to, but excluding, the Redemption Date, subject to
the right of Holders of record on the relevant Record Date to receive interest due on the Notes on the relevant Interest Payment Date
falling prior to or on the Redemption Date; provided that (A) the amount redeemed shall not exceed 40% of the aggregate principal
amount of the Notes issued under this Indenture (including any Additional Notes); (B) at least the lesser of (x) 50% of the
aggregate principal amount of the Notes originally issued under this Indenture on the Issue Date and (y) $250.0 million aggregate
principal amount of the Notes remains outstanding immediately after the occurrence of each such redemption (unless, in each case, all
Notes are redeemed or repurchased or to be redeemed or repurchased substantially concurrently); and (C) each such redemption occurs
within 270 days of the date of closing of the applicable Equity Offering.
(e) Notwithstanding
the foregoing, in connection with any tender offer, Change of Control Offer, Alternate Offer, Asset Sale Offer or Advance Offer for the
Notes, if Holders of not less than 90% in aggregate principal amount of the then outstanding Notes validly tender and do not validly
withdraw such Notes in such offer and the Issuer, or any third party making such offer in lieu of the Issuer, purchases all of the Notes
validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right upon not less than 10
nor more than 60 days’ prior notice, given not more than 60 days following such purchase date, to redeem all Notes that remain
outstanding following such purchase at a price equal to the price offered to each other Holder in such offer (which may be less than
par and excluding any early tender or incentive fee in such offer) plus, to the extent not included in the offer payment, accrued and
unpaid interest, if any, thereon, to, but excluding, the Redemption Date, subject to the right of Holders of record on the relevant Record
Date to receive interest due on the relevant Interest Payment Date falling prior to or on the Redemption Date. In determining whether
the Holders of at least 90% of the aggregate principal amount of the then outstanding Notes have validly tendered and not validly withdrawn
Notes in a tender offer, Change of Control Offer, Alternate Offer, Asset Sale Offer or Advance Offer, as applicable, Notes owned by an
Affiliate of the Issuer or by funds controlled or managed by any Affiliate of the Issuer, or any successor thereof, or any Debt Fund
Affiliate shall be deemed to be outstanding for the purposes of such tender offer, Change of Control Offer, Alternate Offer, Asset Sale
Offer or Advance Offer, as applicable. The aggregate principal amount of the Notes that may be redeemed pursuant to Section 3.07(d) of
the Indenture cannot exceed the aggregate Net Cash Proceeds from the relevant Equity Offerings.
(f) Any
redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Section 3.01 through Section 3.06
of the Indenture. Notice of any redemption or offer to purchase, whether in connection with an Equity Offering, Change of Control, Alternate
Offer, Asset Sale Offer, Advance Offer or other transaction or event or otherwise, may, at the Issuer’s (or, in the case of a Change
of Control Offer, a third party making such Change of Control Offer) discretion, be given prior to the completion or occurrence thereof,
and any such redemption, offer to purchase or notice may, at the Issuer’s (or, in the case of a Change of Control Offer, a third
party making such Change of Control Offer) discretion, be subject to one or more conditions precedent (including conditions precedent
applicable to different amounts of Notes redeemed), including completion or occurrence of the related Equity Offering, Change of Control,
Alternate Offer, Asset Sale Offer, Advance Offer or other transaction or event, as the case may be. The Issuer may redeem Notes pursuant
to one or more of the relevant provisions in this Indenture, and a single notice of redemption may be delivered with respect to redemptions
made pursuant to different provisions. Any such notice may provide that redemptions made pursuant to different provisions may have different
Redemption Dates or may specify the order in which redemptions taking place on the same Redemption Date are deemed to occur. In addition,
if such redemption or offer to purchase is subject to satisfaction of one or more conditions precedent, such notice shall state that,
in the Issuer’s (or, in the case of a Change of Control Offer, a third party making such Change of Control Offer) discretion, the
redemption or repurchase date may be delayed until such time (including more than 60 days after the date the notice of redemption or offer
to purchase was sent) as any or all such conditions shall be satisfied (or waived by the Issuer (or, in the case of a Change of Control
Offer, a third party making such Change of Control Offer) in its sole discretion), or such redemption or purchase may not occur and such
notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer (or, in the
case of a Change of Control Offer, a third party making such Change of Control Offer) in its sole discretion) by the redemption or purchase
date, or by the redemption or purchase date so delayed, or that such notice or offer may be rescinded at any time in the Issuer’s
(or, in the case of a Change of Control Offer, a third party making such Change of Control Offer) sole discretion. For the avoidance of
doubt, if any redemption or repurchase date shall be delayed pursuant to Section 3.07 of the Indenture and the terms of the
applicable notice of redemption or repurchase, such redemption or repurchase date as so delayed may occur at any time after the original
redemption or repurchase date set forth in the applicable notice of redemption or repurchase and after the satisfaction of any applicable
conditions precedent, including, without limitation, on a date that is less than 10 days after the original redemption or repurchase date
or the redemption or repurchase date so delayed and more than 60 days after the date of the applicable notice of redemption or repurchase.
In addition, the Issuer may provide in such notice or offer to purchase that payment of the redemption or purchase price and performance
of the Issuer’s obligations with respect to such redemption or offer to purchase may be performed by another Person.
(g) The
Issuer, the Parent Guarantor, its direct and indirect equityholders, including the Investors, any of its Subsidiaries and their respective
Affiliates and members of management may acquire the Notes by means other than a redemption pursuant to this paragraph 5, whether by tender
offer, open market purchases, negotiated transactions or otherwise.
6. Mandatory
Redemption. The Issuer shall not be required to make any mandatory redemption or sinking fund payment with respect to the Notes.
7. Notice
of Redemption. Subject to Section 3.03 of the Indenture, notice of redemption shall be delivered electronically or mailed by
first-class mail, postage prepaid, at least 10 days (except as set forth in Section 3.07(f) of the Indenture) but not more than
60 days before the Redemption Date to each Holder whose Notes are to be redeemed at such Holder’s registered address stated in the
Note Register or otherwise in accordance with the Applicable Procedures, except that redemption notices may be delivered electronically
or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11 of
the Indenture. Notes and portions of Notes selected for redemption shall be in integral multiples of $1,000 and no Notes of $2,000 or
less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held
by such Holder shall be redeemed, even if not in a principal amount of at least $2,000. On and after the Redemption Date, unless the Issuer
defaults in the payment of the redemption price, interest ceases to accrue on this Note or portions thereof called for redemption.
8. Offers
to Repurchase. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously or concurrently sent
a redemption notice with respect to all the outstanding Notes as described under Section 3.07 of the Indenture, the Issuer shall
make a Change of Control Offer in accordance with Section 4.14 of the Indenture. In connection with certain Asset Sales, the
Issuer shall make an Asset Sale Offer or an Advance Offer, as the case may be, as and when provided in accordance with Section 3.08
and Section 4.10 of the Indenture.
Other than as specifically provided in Section 3.08
or Section 4.10 of the Indenture, any purchase pursuant to Section 3.08 of the Indenture shall be made pursuant to
the applicable provisions of Section 3.01 through Section 3.06 of the Indenture, and references therein or herein
to “redeem,” “redemption,” “Redemption Date” and similar words shall be deemed to refer to “purchase,”
“repurchase,” “Purchase Date” and similar words, as applicable.
9. Denominations,
Transfer, Exchange. The Notes are in registered form without coupons in minimum denominations of $2,000 and in integral multiples
of $1,000 in excess thereof. The transfer of Notes shall be registered and Notes may only be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the
Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer and the Transfer Agent
need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion
of any Note being redeemed in part; provided that new Notes will only be issued in minimum denominations of $2,000 and in integral
multiples of $1,000 in excess thereof. Also, the Issuer and the Transfer Agent need not exchange or register the transfer of any Notes
for a period of 15 days before the mailing of a notice of redemption of Notes to be redeemed.
10. Persons
Deemed Owners. The registered Holder of a Note shall be treated as its owner for all purposes. Only registered Holders shall have
rights hereunder.
11. Amendment,
Supplement and Waiver. The Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
12. Defaults
and Remedies.
(a) The
Events of Default relating to the Notes are defined in Section 6.01(a) of the Indenture. If any Event of Default (other
than an Event of Default of the type specified in clause (vi) or (vii) of Section 6.01(a) of
the Indenture) occurs and is continuing under the Indenture, the Trustee or the Holders of not less than 30% in aggregate principal amount
of all of the then outstanding Notes may, by notice to the Issuer and the Trustee, in either case specifying in such notice the respective
Event of Default and that such notice is a “notice of acceleration,” declare the principal, premium, if any, interest and
any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Upon the effectiveness of such declaration,
such principal of and premium, if any, and interest will be due and payable immediately. Notwithstanding the foregoing, in the case of
an Event of Default arising under clause (vi) or (vii) of Section 6.01(a) of the Indenture, all outstanding
Notes will become due and payable without further action or notice. Holders may not enforce the Indenture, the Notes or the Guarantees
except as provided in the Indenture. Subject to certain limitations, the Required Holders may direct the Trustee in its exercise of any
trust or power.
(b) The
Trustee may withhold from the Holders notice of any continuing Default, except a Default relating to the payment of principal, premium,
if any, or interest, if it determines that withholding notice is in their interest. In addition, subject to Section 6.05 of
the Indenture, the Trustee will have no obligation to accelerate the Notes if in the judgment of the Trustee acceleration is not in the
interests of the Holders of all of the Notes.
(c) The
Required Holders, by written notice to the Trustee (with a copy to the Issuer, provided that any waiver or rescission under Section 6.04
of the Indenture shall be valid and binding notwithstanding the failure to provide a copy of such notice to the Issuer) may on behalf
of the Holders of all of the Notes waive any existing Default and its consequences under the Indenture (including in connection with an
Asset Sale Offer, an Advance Offer, a Change of Control Offer or an Alternate Offer) and rescind any acceleration with respect to the
Notes and its consequences under the Indenture (except if such rescission would conflict with any judgment of a court of competent jurisdiction
and except a continuing Default in the payment of interest on, premium, if any, or the principal of, any Note held by a non-consenting
Holder). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of the Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereto.
(d) The
Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer shall promptly
(which shall be no more than 20 Business Days after becoming aware of such Default) deliver to the Trustee by registered or certified
mail or by facsimile transmission an Officer’s Certificate specifying such Default, its status and what action the Issuer is taking
or proposes to take with respect thereto.
13. Guarantees.
The Issuer’s obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the Guarantors.
14. Authentication.
This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of the Trustee.
15. Governing
Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. CUSIP
Numbers and ISINs. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer
has caused CUSIP numbers and ISINs to be printed on the Notes and the Trustee may use CUSIP numbers and ISINs in notices of redemption
as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to the Issuer at the following address:
Gates Corporation
1144 Fifteenth Street, Suite 1400
Denver, CO 80202
Attention: Treasurer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
|
|
(Insert assignee’s legal name) |
|
(Insert assignee’s soc. sec. or tax I.D. no.) |
|
|
|
(Print or type assignee’s name, address and zip code) |
and irrevocably appoint |
|
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him. |
|
Your Signature: |
|
|
|
(Sign exactly as your name appears on the face of this Note) |
* Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased
by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, check the appropriate box below:
☐
Section 4.10
¨
Section 4.14
If you want to elect to have only part of this
Note purchased by the Issuer pursuant to Section 4.10 or Section 4.14 of the Indenture, state the amount you elect
to have purchased:
$________________
Date: ____________________
|
Your Signature: |
|
|
|
(Sign exactly as your name appears on the face of this Note) |
Tax Identification No.:
* Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The initial outstanding principal amount of this
Global Note is $___________. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Date of Exchange |
|
Amount of
decrease in
Principal Amount
of this Global Note |
|
Amount of increase
in Principal Amount
of this Global Note |
|
Principal Amount of
this Global Note
following such
decrease or increase |
|
Signature of
authorized
signatory of
Trustee or
Custodian |
|
|
|
|
|
|
|
|
|
* This
schedule should be included only if the Note is issued in global form.
Exhibit B
[FORM OF CERTIFICATE OF TRANSFER]
Gates Corporation
1144 Fifteenth Street, Suite 1400
Denver, CO 80202
Attention: Treasurer
Laurel Casasanta
U.S. Bank Trust Company, National Association
Global Corporate Trust
CityPlace I
185 Asylum Street, 27th Floor
Hartford, Connecticut 06103
Electronic Mail: laurel.casasanta@usbank.com
Re: 6.875% Senior Notes due 2029
Reference is hereby made to the Indenture, dated
as of June 4, 2024 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among
Gates Corporation, a Delaware corporation (the “Issuer”), the Guarantors named therein and U.S. Bank Trust Company,
National Association, a national banking association, as Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
____________________ (the “Transferor”)
owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $_______________
in such Note[s] or interests (the “Transfer”), to (the “Transferee”), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ¨
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT 144A GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT
TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest
or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state
of the United States.
2. ¨
CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT REGULATION S GLOBAL NOTE OR RELEVANT DEFINITIVE NOTE PURSUANT
TO REGULATION S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities
Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States
and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting
on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have
been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, (iii) the transaction
is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is
being made prior to the expiration of the applicable Restricted Period, the transfer is not being made to a U.S. Person or for the account
or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in
the Indenture and the Securities Act.
3. ¨
CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE RELEVANT DEFINITIVE NOTE PURSUANT TO ANY PROVISION
OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further
certifies that (check one):
(a) ¨
such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or
(b) ¨
such Transfer is being effected to the Parent Guarantor or a subsidiary or direct or indirect parent company thereof; or
(c) ¨
such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act.
4.
¨ CHECK IF TRANSFEREE WILL
TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) ¨
CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(b) ¨
CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) ¨
CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuer.
|
[Insert Name of Transferor] |
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Dated: ___________
ANNEX A TO CERTIFICATE OF TRANSFER
1.
The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a)
[ ] a beneficial interest in the:
(i) [
] 144A Global Note (CUSIP: 367398 AA2; ISIN: US367398AA27), or
(ii) [
] Regulation S Global Note (CUSIP: U3702M AA1; ISIN: USU3702MAA19), or
(b) [
] a Restricted Definitive Note.
2.
After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [
] a beneficial interest in the:
(i) [
] 144A Global Note (CUSIP: 367398 AA2; ISIN: US367398AA27), or
(ii) [
] Regulation S Global Note (CUSIP: CUSIP: U3702M AA1; ISIN: USU3702MAA19), or
(iii) [
] Unrestricted Global Note (CUSIP: [___]; ISIN: [___]), or
(b) [
] a Restricted Definitive Note; or
(c) [
] a Unrestricted Definitive Note, in accordance with the terms of the Indenture.
Exhibit C
[FORM OF CERTIFICATE OF EXCHANGE]
[ ]
Laurel Casasanta
U.S. Bank Trust Company, National Association
Global Corporate Trust,
CityPlace I
185 Asylum Street, 27th Floor
Hartford, Connecticut 06103
Electronic Mail: laurel.casasanta@usbank.com
Re: 6.875% Senior Notes due 2029
Reference is hereby made to the Indenture, dated
as of June 4, 2024 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), among
Gates Corporation, a Delaware corporation (the “Issuer”), the Guarantors named therein and U.S. Bank Trust Company,
National Association, a national banking association, as Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
________________ (the “Owner”)
owns and proposes to exchange Note[s] or an interest in such Note[s], in the principal amount of $__________in such Note[s] or interests
(the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1.
EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED
DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) ¨
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(b) ¨
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for a Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws
of any state of the United States.
(c) ¨
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner’s
Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(d) ¨
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner’s Exchange of
a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note
is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2.
EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) ¨
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) ¨
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global
Note in each case, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of
the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuer.
|
[Insert Name of Transferor] |
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Dated: __________
Exhibit D
[FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
[______] Supplemental Indenture (this “Supplemental
Indenture”), dated as of ______________, among ________________________ (the “Guaranteeing Subsidiary”),
a subsidiary of Gates Industrial Holdco Limited, a U.K. limited liability company (the “Parent Guarantor”), Gates Corporation,
a Delaware corporation (the “Issuer”), and U.S. Bank Trust Company, National Association, a national banking association,
as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuer and the Guarantors have heretofore
executed and delivered to the Trustee an Indenture (the “Indenture”), dated as of June 4, 2024, providing for
the issuance of $500,000,000 aggregate principal amount of 6.875% Senior Notes due 2029 (the “Notes”);
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing
Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions
set forth herein and under the Indenture (the “Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture,
the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for
the equal and ratable benefit of the Holders as follows:
(1) Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
(2) Agreement
to Guarantee. The Guaranteeing Subsidiary acknowledges that it has received and reviewed a copy of the Indenture and all other documents
it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become
a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made by,
and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Guarantor pursuant to the
Indenture. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Indenture, including, but not limited to, Article 10 thereof.
(3) Execution
and Delivery. The Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect notwithstanding the absence
of the endorsement of any notation of such Guarantee on the Notes.
(4) No
Recourse against Others. No past, present or future director, manager, officer, employee, incorporator, member, partner or direct
or indirect equityholder of the Issuer or the Guaranteeing Subsidiary shall have any liability for any obligations of the Issuer or the
Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting Notes waives and releases
all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(5) Governing
Law. THIS SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(6) Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. This Supplemental Indenture may be executed in multiple counterparts which, when taken together, shall constitute
one instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall
constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original
Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
(7) Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(8) The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary.
(9) Benefits
Acknowledged. The Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set forth in the Indenture. The
Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by
the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made
in contemplation of such benefits.
(10) Successors.
All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its successors, except as otherwise provided in
this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
(11) Ratification
of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder shall be bound hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused
this Supplemental Indenture to be duly executed, all as of the date first above written.
|
[GUARANTEEING SUBSIDIARY] |
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
|
|
|
|
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
|
|
|
|
By: |
|
|
|
Name: |
|
|
Title: |
Exhibit 4.3
AMENDMENT NO. 9 TO CREDIT AGREEMENT
AMENDMENT NO. 9 TO CREDIT AGREEMENT,
dated as of June 4, 2024 (this “Amendment”), among OMAHA HOLDINGS LLC, a Delaware limited liability company (“Existing
Holdings”), as assignor, GATES INDUSTRIAL HOLDCO LIMITED, a corporation incorporated under the laws of England and Wales (“Parent”),
as assignee, OMAHA ACQUISITION INC., a Delaware corporation (“New Holdings”), GATES GLOBAL LLC (the “Existing
Borrower”), as assignor, GATES CORPORATION (the “New Borrower” or the “Borrower”), as
assignee, each of the Guarantors party hereto, UBS AG CAYMAN ISLANDS BRANCH, as administrative agent (in such capacity and including
any permitted successor or assign, the “Administrative Agent”) for the Lenders (as defined in the Credit Agreement
referred to below), UBS AG, STAMFORD BRANCH, as collateral agent (in such capacity, the “Collateral Agent”) and L/C
Issuer (as defined in the Credit Agreement), the Lenders party hereto and JPMorgan Chase Bank, N.A., as the Fronting Lender (as defined
below).
W
I T N E S S E T H:
WHEREAS, Existing Holdings,
the Existing Borrower, the Lenders, the Administrative Agent and certain other parties entered into a Credit Agreement dated as of July 3,
2014 (as amended by Amendment No. 1 dated as of April 7, 2017, as amended by Amendment No. 2 dated as of November 22,
2017, as amended by Amendment No. 3 dated as of January 24, 2018, as amended by Amendment No. 4 dated as of February 24,
2021, as amended by Amendment No. 5 dated as of November 18, 2021, as amended by Amendment No. 6 dated as of November 16,
2022, as amended by Amendment No. 7 dated as of March 1, 2023, as amended by Amendment No. 8 dated as of October 10,
2023 and as further amended, supplemented or otherwise modified through the date hereof, the “Existing Credit Agreement”;
the Existing Credit Agreement, as amended by this Amendment, the “Credit Agreement”; capitalized terms used herein
but not otherwise defined herein shall have the meanings given such terms in the Credit Agreement);
WHEREAS, Existing Holdings
and Existing Borrower desire that Existing Holdings assign all of its rights, title, interests, duties, liabilities and obligations (including
the Obligations) under the Loan Documents as “Holdings” to Parent;
WHEREAS, Existing Holdings
and the Existing Borrower desire that the Existing Borrower assign all of its rights, title, interests, duties, liabilities and obligations
(including the Obligations) under the Loan Documents as the “Borrower” (including for the avoidance of doubt as “Co-Borrower”)
to the New Borrower;
WHEREAS, (i) Parent agrees
to assume such rights, title, interests, duties, liabilities and obligations of Existing Holdings under the Credit Agreement and the
other Loan Documents by executing this Amendment, (ii) the New Borrower agrees to assume such rights, title, interests, duties,
liabilities and obligations of the Existing Borrower under the Credit Agreement and the other Loan Documents by executing this Amendment
and (iii) each Guarantor (including New Holdings) confirms that its Guaranty applies to the New Borrower’s obligations under
the Loan Documents;
WHEREAS, in accordance with
Section 10.26 of the Existing Credit Agreement, the Administrative Agent, the Collateral Agent and the Lenders waive the prohibition
on Existing Holdings and the Existing Borrower assigning and transferring all of their respective rights and obligations under the Existing
Credit Agreement and the other Loan Documents to Parent and the New Borrower and the assumption by Parent and the New Borrower of such
rights and obligations of Existing Holdings and the Existing Borrower, respectively, under the Credit Agreement and all other Loan Documents,
as the same may be modified by this Amendment or from time to time amended, supplemented and/or otherwise modified from time to time;
WHEREAS, Section 2.15
of the Existing Credit Agreement permits the Lenders to, upon the request of the Borrower, refinance all or any portion of any Class of
Revolving Credit Loans (or unused Revolving Credit Commitments) then outstanding under the Credit Agreement, with Other Revolving Credit
Loans and Other Revolving Credit Commitments, as the case may be, pursuant to the procedures described therein and a Refinancing Amendment;
WHEREAS, the Borrower has requested
that the Lenders listed on Schedule I hereto (each, a “Refinancing Revolving Lender”) provide “Other Revolving
Credit Commitments” (the “Refinancing Revolving Commitments”) and “Other Revolving Credit Loans”
(if applicable) (the “Refinancing Revolving Loans”) under Section 2.15 of the Credit Agreement (collectively,
the “Refinancing Revolving Facility”) to refinance all Revolving Credit Commitments and Revolving Credit Loans (if
applicable) outstanding immediately prior to the effectiveness of this Amendment (such Revolving Credit Commitments and Revolving Credit
Loans, collectively, and including for the avoidance of doubt, Revolving Credit Commitments and Revolving Credit Loans that are converted
or exchanged into the Refinancing Revolving Facility pursuant to this Amendment, the “Refinanced Revolving Facility”
(the Refinancing Revolving Commitments together with the Incremental Revolving Commitments (as defined below), the “New Revolving
Facility”);
WHEREAS, the Refinancing Revolving
Lenders will comprise, and the New Revolving Facility will be made by, (i) in part, Lenders under the Refinanced Revolving Facility
and who agree to convert or exchange all of their Refinanced Revolving Facility to or for the Refinancing Revolving Facility; and (ii) in
part, Persons providing new Refinancing Revolving Facility Commitments which, and the proceeds of which (if applicable) will be used
by the Borrower to repay lenders under the Refinanced Revolving Facility that will not be so converted or exchanged;
WHEREAS, Section 2.14
of the Credit Agreement permits the Borrower to establish Incremental Revolving Credit Commitments and to amend the Credit Agreement
to give effect to the establishment thereof;
WHEREAS, the Borrower has requested
that the Refinancing Revolving Lenders (in such capacity, the “Incremental Revolving Lenders”) provide a Revolving
Commitment Increase, in respect of the Refinancing Revolving Facility as previously effected pursuant to this Amendment, under Section 2.14
of the Credit Agreement in an aggregate principal amount of $250,000,000 (such Revolving Commitment Increase in such principal amount
referred to herein as the “Incremental Revolving Commitments”; together with the Refinancing Revolving Commitments,
the “New Revolving Commitments”; the loans made pursuant thereto, the “New Revolving Loans”) such
that the Refinancing Revolving Commitments under the Refinancing Revolving Facility previously effected pursuant to this Amendment, plus
the Incremental Revolving Commitments, shall be the aggregate amount set forth on Schedule I hereto opposite such Refinancing Revolving
Lender;
WHEREAS, the New Revolving
Loans will be made under one new facility, after giving effect to both the Refinancing Revolving Facility and the Incremental Revolving
Commitments and the New Revolving Loans will be held by Refinancing Revolving Lenders and the Incremental Revolving Lender ratably in
accordance with their New Revolving Commitments.
WHEREAS, the Refinancing Revolving
Lenders are willing, subject to the terms and conditions set forth herein and in the Credit Agreement, to severally make to the Borrower
the amount of the New Revolving Commitments set forth opposite its name on Schedule I hereto and on the terms set forth with respect
to “Revolving Credit Commitments” and “Revolving Credit Loans” as set forth in the Credit Agreement (after giving
effect to this Amendment);
WHEREAS, Section 2.15
of the Existing Credit Agreement permits the Lenders to, upon the request of the Borrower, refinance all or any portion of any Class of
Term Loans then outstanding under the Credit Agreement, with Refinancing Loans and Refinancing Term Commitments, as the case may be,
pursuant to the procedures described therein and a Refinancing Amendment;
WHEREAS, the Borrower has requested
that the Lenders listed on Schedule I (each, a “Refinancing Term Lender”; together with the Refinancing Revolving
Lenders, the “Refinancing Lenders”) provide “Refinancing Term Commitments” (the “Refinancing
Term Commitments”) and “Refinancing Term Loans” (the “Refinancing Term Loans”) under Section 2.15
of the Credit Agreement (collectively, the “Refinancing Term Facility”) to refinance all Initial B-3 Dollar Term Loans
(as defined in the Existing Credit Agreement) outstanding immediately prior to the effectiveness of this Amendment (such Initial B-3
Dollar Term Loans that are refinanced by the Refinancing Term Facility pursuant to this Amendment, the “Refinanced Term Loans”
or “Initial B-5 Dollar Term Loans”;
WHEREAS, the Refinancing Term
Lenders are willing, subject to the terms and conditions set forth herein and in the Credit Agreement, to severally make to the Borrower
the amount of the Refinancing Term Commitments set forth opposite its name on Schedule I hereto and on the terms set forth with respect
to “Initial B-5 Dollar Term Commitments” and “Initial B-5 Dollar Term Loans” as set forth in the Credit Agreement
(after giving effect to this Amendment);
WHEREAS, Existing Holdings,
the Existing Borrower, New Holdings and New Borrower have requested, (i) to refinance all of the existing Revolving Credit Commitments
and upsize the Revolving Credit Commitments by an aggregate principal amount equal to $250,000,000, (ii) refinance the entire amount
of the Initial B-3 Dollar Term Loans with the Initial B-5 Dollar Term Loans, (iii) to amend the definition of “Applicable
Rate” with respect to the Initial B-4 Dollar Term Loans and (iv) to make certain other amendments to the Credit Agreement
pursuant to which certain provisions of the Credit Agreement will be amended as set forth herein;
WHEREAS, Section 10.01
of the Credit Agreement provides that the parties hereto may amend the Credit Agreement for the purposes set forth herein;
WHEREAS,
(i) Citigroup Global Markets, Inc., JPMorgan Chase Bank, N.A., HSBC Securities (USA) Inc., Goldman Sachs Bank USA, Barclays
Bank PLC, CIBC World Markets Corp., PNC Capital Markets LLC, Santander Bank, N.A. and UBS Securities LLC are joint lead arrangers and
joint bookrunners for this Amendment (the “Amendment No. 9 Arrangers”) and (ii) BofA Securities, Inc.,
KeyBanc Capital Markets, Morgan Stanley Senior Funding, Inc. and Royal Bank of Canada are co-managers for this Amendment (the “Amendment
No. 9 Co-Managers”).
WHEREAS, each Lender holding
Initial B-4 Dollar Term Loans immediately prior to the Amendment No. 9 Effective Date (the “Existing Term B-4 Loans”,
and each of the Lenders with Existing Term B-4 Loans, the “Existing Term B-4 Lenders”) that executes and delivers
a consent (a “Consent”) in the form of Annex A to this Amendment by 10:00 a.m., New York City time on Thursday, May 23,
2024 (the “Consent Deadline”) will have agreed to the terms of this Amendment upon the effectiveness of this Amendment
on the Amendment No. 9 Effective Date (as defined below). For purposes hereunder, the Initial B-4 Dollar Term Loans after giving
effect to this Amendment shall be referred to as the “Repriced Term Loans”, and each Existing Term B-4 Lender that
executed and delivers a consent in accordance with the terms hereof shall be referred to as a “Consenting Lender”).
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:
ARTICLE I
Amendments
The Existing Credit Agreement is, effective as of
the Amendment No. 9 Effective Date, hereby amended as follows:
(a) to
delete the stricken text (indicated textually in the same manner as the following example: stricken
text) and to add the underlined text (indicated textually in the same manner as the following example: underlined
text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto;
(b) Schedule
1.01A of the Existing Credit Agreement is hereby amended and restated in its entirety as set forth in Exhibit B hereto; and
(c) The
existing Exhibits to the Existing Credit Agreement are hereby amended and restated in their entirety as set forth in Exhibit C
hereto.
(d) Parent
will enter into an English law governed debenture, dated as of the date hereof (the “UK Security Agreement”), among
Parent and the Administrative Agent, for the benefit of the Secured Parties, substantially in for form set forth in Exhibit D
hereto.
ARTICLE II
Refinancing Revolving Facility and Incremental
Revolving Commitments
Section 2.1. Subject
to the occurrence of the Amendment No. 9 Effective Date:
(a) Each
Refinancing Revolving Lender hereby (x) consents to the terms of this Amendment and (y) if such Refinancing Revolving Lender
held Revolving Credit Loans or Revolving Credit Commitments immediately prior to this Amendment in an amount less than, equal to or greater
than the amount opposite such Refinancing Revolving Lender on Schedule I hereto, irrevocably agrees that the entire amount of its Revolving
Credit Loans and Revolving Credit Commitments, as in effect immediately prior to the Amendment No. 9 Effective Date, will be repaid,
if applicable, or converted to New Revolving Loans as amended hereby and New Revolving Commitments as amended hereby, respectively, pursuant
to the provisions of Section 2.15 of the Credit Agreement.
(b) Immediately
after the establishment of the Refinancing Revolving Facility, each Incremental Revolving Lender hereby severally agrees to provide the
Incremental Revolving Commitments and, for the avoidance of doubt, the Incremental Revolving Commitments, together with the Refinancing
Revolving Commitments, equal to the amount opposite such Incremental Revolving Lender on Schedule I hereto and irrevocably agrees that
the entire amount of its Incremental Revolving Credit Commitments will be converted to New Revolving Commitments as amended hereby, respectively,
pursuant to the provisions of Section 2.14 of the Credit Agreement.
(c) After
giving effect to the Refinancing Revolving Commitments and the Incremental Revolving Commitments, the New Revolving Commitments of each
Refinancing Revolving Lender under the New Revolving Facility will be as set forth under the caption “New Revolving Commitments”
on Schedule I hereto. The New Revolving Commitments and New Revolving Loans shall be subject to all of the terms and conditions
set forth herein and in the Credit Agreement.
(d) Each
Refinancing Revolving Lender shall be deemed to be a “Lender”, a “Revolving Credit Lender” and a “Secured
Party” for all purposes under the Credit Agreement and each other Loan Document.
(e) Pursuant
to Sections 2.14, 2.15 and 10.01 of the Credit Agreement, on the Amendment No. 9 Effective Date, the New Revolving Commitments shall
(x) have the terms set forth in the Credit Agreement with respect to “Revolving Credit Commitments” and (y) automatically
(and without any further action or notice by any party) become Revolving Credit Commitments for all purposes of the Credit Agreement
and the other Loan Documents. The participations in any outstanding Letters of Credit (which, for the avoidance of doubt, includes participations
in the Existing Letters of Credit (as defined below)) shall each be adjusted in accordance with each Lender’s respective percentage
of the aggregate New Revolving Commitments.
(f) This
Amendment is a Refinancing Amendment referred to in Section 2.15 of the Credit Agreement and an Incremental Amendment referred to
in Section 2.14 of the Credit Agreement.
(g) The
parties hereto agree that those letters of credit listed on Schedule II to this Amendment (the “Existing Letters of Credit”)
shall be deemed Letters of Credit for all purposes under the Credit Agreement, without any further action by the Borrower and all Existing
Letters of Credit shall be deemed to be issued under the Credit Agreement in the name of the Borrower for the benefit of the Borrower
or any Subsidiary of Holdings in whose name such Existing Letter of Credit is outstanding immediately prior to the Amendment No. 9
Effective Date and shall constitute Letters of Credit subject to the terms of the Credit Agreement.
Refinancing Term Facility
Section 2.2. Subject
to the occurrence of the Amendment No. 9 Effective Date:
(a) Each
Refinancing Term Lender hereby consents to the terms of this Amendment.
(b) The
Refinancing Term Commitments of each Refinancing Term Lender under the Refinancing Term Facility will be as set forth under the caption
“Refinancing Term Commitments” on Schedule I hereto. The Initial B-5 Dollar Term Loans shall be subject to all of
the terms and conditions set forth herein and in the Credit Agreement. Each Refinancing Term Commitment will terminate in full upon the
making of the related Refinancing Term Loans. The aggregate amount of the Refinancing Term Commitment is $1,300,000,000.
(c) Substantially
simultaneously with the borrowing of Refinancing Term Loans, the Borrower shall fully prepay any outstanding Refinanced Term Loans, together
with accrued and unpaid interest thereon on the Amendment No. 9 Effective Date.
(d) The
Refinancing Term Commitment provided pursuant to this Amendment shall constitute a “Refinancing Term Commitment” referred
to in Section 2.15 of the Existing Credit Agreement and, upon the Amendment No. 9 Effective Date, the Refinancing Term Commitment
of any Refinancing Term Lender shall become the “Refinancing Term Loans” of such Refinancing Term Lender.
(e) Each
Refinancing Term Lender shall be deemed to be a “Lender”, a “Term Lender” and a “Secured Party” for
all purposes under the Credit Agreement and each other Loan Document.
(f) Pursuant
to Sections 2.15 and 10.01 of the Credit Agreement, on the Amendment No. 9 Effective Date, the Initial B-5 Dollar Term Loans shall
(x) have the terms set forth in the Credit Agreement with respect to “Initial B-5 Dollar Term Loans” and (y) automatically
(and without any further action or notice by any party) become Initial Term Loans and Term Loans for all purposes of the Credit Agreement
and the other Loan Documents.
ARTICLE III
Assignment and Assumption; Release of Existing
Borrower and Existing Holdings
Section 3.1. As
of the Amendment No. 9 Effective Date:
(a) (x) the
Existing Borrower hereby assigns any and all of its rights and obligations as the Borrower under the Credit Agreement and the other Loan
Documents to the New Borrower and (y) the New Borrower hereby assumes all of the rights and obligations (including, for the avoidance
of doubt, the Obligations) of the Existing Borrower as the “Borrower” under the Credit Agreement and the other Loan Documents
and accepts such assignment from the Existing Borrower and hereby agrees to be unconditionally bound in respect of all duties, obligations
and liabilities as the Borrower under the Credit Agreement and the other Loan Documents as if the New Borrower were initially named as
the “Borrower” thereunder;
(b) (x)
Existing Holdings hereby assigns any and all of its rights and obligations as Holdings under the Credit Agreement and the other Loan
Documents to Parent and (y) Parent hereby assumes all of the rights and obligations (including, for the avoidance of doubt, the
Obligations) of Existing Holdings as “Holdings” under the Credit Agreement and the other Loan Documents and accepts such
assignment from Existing Holdings and hereby agrees to be unconditionally bound in respect of all duties, obligations and liabilities
as Holdings under the Credit Agreement and the other Loan Documents as if Parent were initially named as the “Holdings” thereunder;
(c) (x) the
Existing Borrower is hereby released solely from its obligations as the “Borrower” under the Credit Agreement and any other
Loan Document to which it is a party in its capacity as the “Borrower” and (y) Existing Holdings is hereby released
solely from its obligations as “Holdings” under the Credit Agreement and any other Loan Document to which it is a party in
its capacity as “Holdings”;
(d) (x) the
New Borrower hereby confirms its acceptance of, and agrees to be bound by, all covenants and other terms and provisions of the Credit
Agreement and the other Loan Documents applicable to the Borrower and (y) Parent hereby confirms its acceptance of, and agrees to
be bound by, all covenants and other terms and provisions of the Credit Agreement and the other Loan Documents applicable to Holdings;
(e) (x) the
New Borrower hereby makes all representations and warranties required to be made by the Borrower on the Amendment No. 9 Effective
Date as set forth in the Credit Agreement and the other Loan Documents and (y) Parent hereby makes all representations and warranties
required to be made by Holdings on the Amendment No. 9 Effective Date as set forth in the Credit Agreement and the other Loan Documents;
and
(f) (x) all
references in the Credit Agreement or the other Loan Documents to the “Borrower” or “Borrowers” shall mean a
reference to the New Borrower in its capacity as a Borrower and (y) all references in the Credit Agreement or the other Loan Documents
to “Holdings” shall mean a reference to Parent in its capacity as Holdings.
Section 3.2. Reaffirmation
of Guarantors.
(a) Each
Guarantor by its signature below affirms and confirms that its Guaranty and the pledge of and the grant of a security interest in its
assets as Collateral as provided in the Collateral Documents as originally executed, in each case, applies to the New Borrower’s
obligations under the Loan Documents.
ARTICLE IV
Repricing of the Existing Term B-4 Loans and other
Amendments
Section 4.1. Consenting
Lenders, Assigning Lenders and Non-Consenting Lenders.
(a) If
any Existing Term B-4 Lender (each, a “Non-Consenting Lender”) declines or fails to consent to this Amendment by failing
to return an executed Consent to the Administrative Agent prior to the Consent Deadline or elects to assign its Existing Term B-4 Loans
as provided in its executed Consent (each, an “Assigning Lender”), then pursuant to and in compliance with the terms
of Section 3.07(a) of the Existing Credit Agreement, such Non-Consenting Lender or Assigning Lender may be replaced
and all of its interests, rights and obligations under the Existing Credit Agreement and the related Loan Documents with respect to its
Existing Term B-4 Loans may be purchased and assumed by JPMorgan Chase Bank, N.A. (the “Fronting Lender”). As of the
Amendment No. 9 Effective Date, each Non-Consenting Lender and Assigning Lender will be deemed to have executed the Assignment and
Assumption Agreement posted to the Existing Term B-4 Lenders on May 28, 2024 (the “Assignment Agreement”) for
all of its then outstanding Existing Term B-4 Loans and will be deemed to have assigned all of its then outstanding Existing Term B-4
Loans to the Fronting Lender, in each case pursuant to and in compliance with the terms of Section 3.07(b) of the Credit
Agreement.
(b) Each
Consenting Lender hereby agrees to continue to hold 100% of the outstanding principal amount of its Existing Term B-4 Loans (or such
lesser principal amount allocated to such Consenting Lender (or one or more of its Affiliates) by the Fronting Lender in its sole discretion)
in the form of Repriced Term Loans.
(c) Each
Assigning Lender here agrees to assign 100% of its outstanding principal amount of its Existing Term B-4 Loans in accordance with Section 4.1(a) and
further agrees to purchase by assignment (or cause one or more of your Affiliates) from the Fronting Lender a like principal amount of
Repriced Term Loans (or such lesser principal amount allocated to such Assigning Lender (or one or more of its Affiliates) by the Fronting
Lender in its sole discretion).
(d) The
Administrative Agent hereby consents to this Amendment and consents to the assignment of the then outstanding Existing Term B-4 Loans
of each Non-Consenting Lender and Assigning Lender to the Fronting Lender in accordance with Section 10.07 of the Existing
Credit Agreement.
(e) The
marketing term sheet posted to the Existing Term B-4 Lenders on May 20, 2024 shall constitute the notice required under Section 3.07(a) of
the Existing Credit Agreement.
(f) For
the avoidance of doubt, all Existing Term B-4 Loans shall continue to be outstanding as Initial B-4 Dollar Term Loans under the Credit
Agreement (as amended hereby) on and after the Amendment No. 9 Effective Date, subject to the terms of this Amendment, and for the
avoidance of doubt the Initial B-4 Dollar Term Loans shall continue as the same Class of Term Loans for all purposes under the Credit
Agreement.
ARTICLE V
Conditions to Effectiveness
Section 5.1. This
Amendment shall become effective on the date (the “Amendment No. 9 Effective Date”) on which:
(a) The
Administrative Agent (or its counsel) shall have received from (i) the Administrative Agent, (ii) the Collateral Agent, (iii) each
Refinancing Revolving Lender and Incremental Revolving Lender, (iv) each L/C Issuer, (v) each Refinancing Term Lender, (vi) the
Fronting Lender and (vii) each Loan Party, (x) a counterpart of this Amendment signed on behalf of such party or (y) written
evidence satisfactory to the Administrative Agent (which may include a telecopy or other electronic transmission of a signed signature
page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The
Administrative Agent (or its counsel) shall have received, from Parent originals or pdf copies or other facsimiles, properly executed
by a Responsible Officer of Parent of (i) the UK Security Agreement and (ii) a limited joinder to the Security Agreement, each
in form and substance reasonably satisfactory to the Administrative Agent (or its counsel).
(c) The
Administrative Agent (or its counsel) shall have received a customary written legal opinion (addressed to the Administrative Agent, the
Refinancing Revolving Lenders, the Refinancing Term Lenders, the Consenting Lenders and the Fronting Lender) from (i) Simpson Thacher &
Bartlett LLP, New York counsel to the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent and its
legal counsel and (ii) Davis Polk & Wardwell London LLP, English counsel to the Administrative Agent in form and substance
reasonably satisfactory to the Administrative Agent. Each of the Borrower, Parent and New Holdings hereby instruct such counsel to deliver
such legal opinion.
(d) The
Administrative Agent (or its counsel) shall have received such certificates of good standing (to the extent such concept exists) from
the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency
certificates, certificates of incorporation (or confirmation of no change since last delivered to the Administrative Agent) and/or other
certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the
other Loan Documents to which such Loan Party is a party or is to be a party on the Amendment No. 9 Effective Date (including, for
the avoidance of doubt, with respect to the Parent, a certificate signed by a director of the Parent and attaching the articles of association
of the Parent and resolutions of the board of directions of the Parent authorizing the Parent to enter into this Amendment and the other
Loan Documents).
(e) The
Borrower shall have paid to the Administrative Agent all fees and expenses due to the Administrative Agent, the Amendment No. 9
Arrangers and the Amendment No. 9 Co-Managers, as separately agreed in writing, on the Amendment No. 9 Effective Date. All
out-of-pocket and documented reasonable costs and expenses (including, without limitation, the reasonable fees, charges and disbursements
of counsel for the Administrative Agent) of the Administrative Agent and the Amendment No. 9 Arrangers in connection with this Amendment
and the transactions contemplated hereby shall have been paid, to the extent invoiced.
(f) The
representations and warranties of each Loan Party set forth in Article V of the Credit Agreement and in each other Loan Document
shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality”
or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the date of this Amendment
with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate
to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty
that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects
as so qualified) as of such earlier date.
(g) At
the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall exist or would result
from this Amendment or from the application of the proceeds therefrom.
(h) The
Administrative Agent shall have received a certificate, dated the Amendment No. 9 Effective Date and signed by a Responsible Officer
of the Borrower, confirming compliance with the conditions set forth in paragraphs (f) and (g) of this Section 5.1.
(i) The
Borrower shall have paid to the Administrative Agent all accrued and unpaid interest on the Initial B-3 Dollar Term Loans to, but not
including, the Amendment No. 9 Effective Date.
(j) If
applicable, the Administrative Agent shall have received a Committed Loan Notice with respect to the New Revolving Loans (if any) to
be made on the Amendment No. 9 Effective Date at the Administrative Agent’s Office at least three Business Days prior to the
Amendment No. 9 Effective Date (or, in each case, such shorter notice as is approved by the Administrative Agent in its reasonable
discretion), and such Committed Loan Notice shall otherwise meet the requirements set forth in Section 2.02 of the Credit Agreement.
(k) If
applicable, the Administrative Agent shall have received a prepayment notice with respect to the existing Revolving Credit Loans (if
any) to be prepaid on the Amendment No. 9 Effective Date at the Administrative Agent’s Office at least three Business Days
prior to the Amendment No. 9 Effective Date (or, in each case, such shorter notice as is approved by the Administrative Agent in
its reasonable discretion), and such prepayment notice shall otherwise meet the requirements set forth in Section 2.05 of the Credit
Agreement.
(l) The
Administrative Agent (or its counsel) shall have received satisfactory evidence of the consummation of the repayment in full of all outstanding
indebtedness under the ABL Credit Agreement (as defined in the Existing Credit Agreement) and the termination of all commitments thereunder
and all security interests and guarantees in connection therewith.
(m) The
Borrower shall have delivered to the Administrative Agent a Request for Credit Extension in respect of the Initial B-5 Dollar Term Loans
accordance with the requirements under the Existing Credit Agreement.
(n) The
Administrative Agent shall have received at least 3 Business Days prior to the Amendment No. 9 Effective Date all documentation
and other information about the New Borrower and the Guarantors required under applicable “know your customer” and anti-money
laundering rules and regulations, including without limitation the USA PATRIOT Act and, with respect to the New Borrower, the Beneficial
Ownership Regulation, in each case, that has been requested by the Administrative Agent in writing at least 10 Business Days prior to
the Amendment No. 9 Effective Date.
(o) The
Administrative Agent (or its counsel) shall have received a Consent in the form of Exhibit A to this Amendment, duly executed by
each Existing Term B-4 Lender (excluding any Non-Consenting Lender) prior to the Amendment No. 9 Effective Date, in each case, by
the Consent Deadline.
(p) With
respect to each Mortgaged Property, the Collateral Agent shall have received a completed “life-of-loan” Federal Emergency
Management Agency standard flood hazard determination, and, to the extent any improved Mortgaged Property is located in an area determined
by the Federal Emergency Management Agency to be a special flood hazard area, (i) a notice about special flood hazard area status
and flood disaster assistance duly executed by the Borrower and (ii) evidence of flood insurance as required by Section 6.07(c) of
the Credit Agreement. For the avoidance of doubt, the Administrative Agent confirms this condition has been satisfied as of the Amendment
No. 9 Effective Date.
ARTICLE VI
Representations
and Warranties.
Section 6.1. Each
Loan Party represents and warrants that:
(a) Organization;
Power. Each Loan Party (i) is duly organized or incorporated, validly existing and, to the extent such concept is applicable
in the corresponding jurisdiction, in good standing under the laws of the jurisdiction of its organization or incorporation and (ii) has
all requisite organizational or constitutional power and authority to execute and deliver this Amendment and perform its obligations
under the Credit Agreement as amended by this Amendment, and the other Loan Documents to which it is a party, except, in the case of
clauses (i) and (ii), where the failure to do so, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect.
(b) Authorization;
Enforceability. This Amendment has been duly authorized by all necessary corporate, shareholder or other organizational action by
each Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, as applicable, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(c) Loan
Document Representations and Warranties. The representations and warranties of the Borrower and each other Loan Party contained in
Article V of the Credit Agreement or any other Loan Document are true and correct in all material respects (except that any representation
and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in
all respects as so qualified) on and as of the Amendment No. 9 Effective Date and except that the representations and warranties
which by their terms are made as of an earlier date are true and correct in all material respects (except that any representation and
warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects as so qualified) only as of such specified date.
(d) No
Default. At the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is
continuing.
ARTICLE VII
Miscellaneous
Section 7.1. Each
Loan Party represents and warrants that:
(a) On
and after the date hereof, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents
to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring
to the Credit Agreement, mean and are a reference to the Credit Agreement as modified by this Amendment. This Amendment is a Loan Document
executed pursuant to the Credit Agreement and shall be construed, administered and applied in accordance with the terms and provisions
thereof.
(b) The
Credit Agreement, as specifically amended by this Amendment, and each of the other Loan Documents are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to secure the payment of all of the respective Obligations
of Holdings and the Borrower under the Loan Documents, in each case as the Credit Agreement is amended by this Amendment.
(c) The
execution, delivery and effectiveness of this Amendment does not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan Documents nor constitute a waiver of any provision of
any of the Loan Documents. This Amendment shall not constitute a novation of the Credit Agreement.
(d) The
parties hereto hereby agree that this Amendment shall constitute the notice with respect to the establishment of the Incremental Revolving
Commitments, Refinancing Revolving Commitment and Refinancing Term Commitments required pursuant to Section 2.14 and 2.15 of the
Credit Agreement and notice with respect to the addition of L/C Issuers required pursuant to Section 2.03(k) of the Credit
Agreement.
Section 7.2. Counterparts.
This Amendment 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 Amendment constitutes the entire contract
among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. This Amendment shall be binding upon and inure to the benefit of the parties hereto and to the
other Loan Documents and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile or electronic transmission shall be effective as delivery of an original executed counterpart of this Amendment.
Any signature to this Amendment may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying
with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent
permitted by applicable law.
Section 7.3. GOVERNING
LAW, etc. This AMENDMENT shall
be construed in ACCORDANCE with and governed by the law of the State of New York.
The provisions of Sections 10.15(b) and 10.16 of the Credit Agreement are incorporated herein and apply to this Amendment mutatis
mutandis. Parent hereby irrevocably appoints the Borrower as its agent for service of process with respect to this Amendment, the
Credit Agreement, all other Loan Documents and all other related agreements to which it is a party (the “Process Agent”)
and the Borrower hereby accepts such appointment as the Process Agent and hereby agrees to forward promptly to Parent all legal process
addressed to Parent received by the Process Agent.
Section 7.4. Headings.
Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and are not
to affect the construction of, or be taken into consideration in interpreting, this Amendment.
Section 7.5. Reaffirmation.
Each Loan Party hereby expressly acknowledges the terms of this Amendment and reaffirms, as of the date hereof, (i) the covenants
and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect
immediately after giving effect to this Amendment and the transactions contemplated hereby, (ii) its guarantee of the Obligations
under each Guaranty, as applicable, (iii) its prior grant of Liens on the Collateral to secure the Obligations pursuant to the Collateral
Documents and (iv) agrees that (x) each Collateral Document to which it is a party shall continue to be in full force and effect,
after giving effect to this Amendment and (y) all guarantees, Liens, pledges, grants and other obligations under the Loan Documents
shall continue to be in full force and effect and shall secure the Obligations after giving effect to this Amendment.
ARTICLE VIII.
Section 8.1. Post-Closing
Mortgage Amendments. Within 90 days of the Amendment No. 9 Effective Date (unless extended by the Administrative Agent
in its reasonable discretion), the Collateral Agent shall have received with respect to each Mortgaged Property, in each case in form
and substance reasonably acceptable to the Administrative Agent, either:
(a) written
or e-mail confirmation from local counsel in the jurisdiction in which the Mortgaged Property is located substantially to the effect
that: (i) the recording of the existing Mortgage is the only filing or recording necessary to give constructive notice to third
parties of the Lien created by such mortgage as security for the Obligations, including the Obligations evidenced by this Amendment and
the other documents executed in connection herewith, for the benefit of the Secured Parties, and (ii) no other documents, instruments,
filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording
taxes or similar taxes are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity
or priority of the Lien created by such mortgage as security for the Obligations, including the Obligations evidenced by this Amendment
and the other documents executed in connection herewith, for the benefit of the Secured Parties; or
(b) (i) an amendment
to the existing Mortgage (the “Mortgage Amendment”) to reflect the matters set forth in this Amendment, duly executed
and acknowledged by the applicable Loan Party, and in form for recording in the recording office where such Mortgage was recorded, together
with such certifications, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof
under applicable law;
(ii) a
favorable opinion, addressed to the Collateral Agent and the Secured Parties covering the enforceability of the applicable Mortgage as
amended by the Mortgage Amendment;
(iii) a
date down endorsement (or other title product where a date down endorsement is not available in the applicable jurisdiction) to the existing
Mortgage Policy, which shall reasonably assure the Collateral Agent as of the date of such endorsement (or other title product) that
the real property subject to the lien of such Mortgage is free and clear of all defects and encumbrances except for Liens permitted pursuant
to Section 7.01 of the Credit Agreement or Liens otherwise consented to by the Administrative Agent;
(iv) evidence
of payment by the Borrower of all escrow charges and related charges, mortgage recording taxes, fees, charges and costs and expenses
required for the recording of the Mortgage Amendment referred to above; and
(v) such
affidavits, certificates, information and instruments of indemnification as shall be required to induce the title company to issue the
endorsement (or other title product) contemplated above and evidence of payment of all applicable title insurance premiums, search and
examination charges, and related charges required for the issuance of the endorsement.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed and delivered by their respective duly authorized officers as of the date first above written.
|
GATES GLOBAL LLC, |
|
as Existing Borrower |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES CORPORATION, |
|
as New Borrower |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
OMAHA
HOLDINGS LLC, |
|
as Existing
Holdings |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
|
|
|
GATES
INDUSTRIAL HOLDCO LIMITED, |
|
as Parent |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Director |
[Signature Page to Amendment No. 9]
|
OMAHA ACQUISITION INC.,
as New Holdings and a Guarantor |
|
|
|
By: |
/s/
Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
[Signature Page to Amendment No. 9]
|
Omaha
Holdings LLC |
|
Gates
Holdings 1 LLC |
|
Gates
Global LLC |
|
GATES INVESTMENTS, LLC |
|
GATES ADMINISTRATION CORP. |
|
PHILIPS HOLDING CORPORATION |
|
TOMKINS BP US HOLDING CORP. |
|
GATES E&S NORTH AMERICA, INC. |
|
GATES TPU, INC. |
|
GATES INTERNATIONAL HOLDINGS,
LLC |
|
ATLAS HYDRAULICS LLC |
|
|
|
each as a Guarantor |
|
|
|
By: |
/s/ Nathan Rogers |
|
|
Name: |
Nathan Rogers |
|
|
Title: |
Treasurer |
[Signature Page to Amendment No. 9]
|
Accepted and Acknowledged: |
|
|
|
UBS AG CAYMAN ISLANDS BRANCH, as Administrative
Agent |
|
|
|
/s/ Vipul Dhadda |
|
Name: |
Vipul Dhadda |
|
Title: |
Executive Director |
|
|
|
/s/ Cassandra Droogan |
|
Name: |
Cassandra Droogan |
|
Title: |
Director |
[Signature Page to Amendment No. 9]
|
UBS AG, SAMFORD BRANCH, as Collateral
Agent |
|
|
|
/s/ Vipul Dhadda |
|
Name: |
Vipul Dhadda |
|
Title: |
Executive Director |
|
|
|
/s/ Cassandra Droogan |
|
Name: |
Cassandra Droogan |
|
Title: |
Executive Director |
[Signature Page to Amendment No. 9]
|
JPMORGAN
CHASE BANK, N.A., as Refinancing Term Lender, Refinancing Revolving Lender, Incremental Revolving Lender, L/C Issuer and
Fronting Lender |
|
|
|
/s/
Christopher L. Beery |
|
Name: |
Christopher L. Beery |
|
Title: |
Vice President |
[Signature Page to
Amendment No. 9]
|
CITIBANK,
N.A., as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
James Oleskewicz |
|
Name: |
James Oleskewicz |
|
Title: |
Vice President |
[Signature Page to
Amendment No. 9]
|
GOLDMAN
SACHS BANK USA, as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Dana Siconolfi |
|
Name: |
Dana Siconolfi |
|
Title: |
Authorized Signatory |
[Signature Page to
Amendment No. 9]
|
HSBC
Bank USA, NATIONAL ASSOCIATION, as Refinancing Revolving Lender, Incremental Revolving Lender,
and L/C Issuer |
|
|
|
/s/
David Sanders |
|
Name: |
David Sanders |
|
Title: |
Senior Vice President |
[Signature Page to
Amendment No. 9]
|
BARCLAYS
BANK PLC, as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Craig Malloy |
|
Name: |
Craig Malloy |
|
Title: |
Director |
[Signature Page to
Amendment No. 9]
|
CIBC
BANK USA, as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
James Belletire |
|
Name: |
James Belletire |
|
Title: |
Managing Director |
[Signature Page to
Amendment No. 9]
|
PNC BANK, NATIONAL ASSOCIATION,
as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Dana Kerpsack |
|
Name: |
Dana Kerpsack |
|
Title: |
Vice President |
[Signature Page to
Amendment No. 9]
|
SANTANDER
BANK, N.A., as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Dwayne Foo |
|
Name: |
Dwayne Foo |
|
Title: |
Vice President |
[Signature Page to
Amendment No. 9]
|
UBS
AG, STAMFORD BRANCH, as Refinancing Revolving Lender, Incremental Revolving Lender, and L/C Issuer |
|
|
|
/s/
Muhammad Afzal |
|
Name: |
Muhammad Afzal |
|
Title: |
Director |
|
|
|
|
/s/ Danielle Calo |
|
Name: |
Danielle Calo |
|
Title: |
Associate Director |
[Signature Page to
Amendment No. 9]
|
BANK
OF AMERICA, N.A., as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Karen Virani |
|
Name: |
Karen Virani |
|
Title: |
Senior Vice President |
|
|
[Signature Page to
Amendment No. 9]
|
KEYBANK NATIONAL ASSOCIATION,
as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Andrew Ashley |
|
Name: |
Andrew Ashley |
|
Title: |
Managing Director |
|
|
[Signature Page to
Amendment No. 9]
|
MORGAN
STANLEY SENIOR FUNDING, INC., as Incremental Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/
Michael King |
|
Name: |
Michael King |
|
Title: |
Vice President |
[Signature Page to
Amendment No. 9]
|
ROYAL
BANK OF CANADA, as Incremental
Revolving Lender, Refinancing Revolving Lender, and L/C Issuer |
|
|
|
/s/ Nikhil Madhok |
|
Name:Nikhil Madhok |
|
Title:Authorized Signatory |
[Signature Page to Amendment No. 9]
Annex A
[On
file with the Administrative Agent]
SCHEDULE I
[On file with the Administrative
Agent]
Schedule II
[On file with the Administrative Agent]
Exhibit A
Credit Agreement
Exhibit A
to Amendment No. 9
CONFORMED VERSION THROUGH
AMENDMENT NO. 8 TO CREDIT AGREEMENT
(as of October 10, 2023)
CREDIT AGREEMENT
Dated as of July 3, 2014,
As amended by Amendment No. 1 on April 7,
2017
As amended by Amendment No. 2 on November 22,
2017
As amended by Amendment No. 3 on January 24,
2018
As amended by Amendment No. 4 on February 24,
2021
As amended by Amendment No. 5 on November 18,
2021
As amended by Amendment No. 6 on November 16,
2022
As amended by Amendment No. 7 on March 1,
2023
As amended by Amendment No. 8 on October 10,
2023
As amended by Amendment No. 9
on June 4, 2024
among
Omaha
holdings llcGates Industrial Holdco Limited,
as Holdings,
GATES
GLOBAL LLCGates Corporation,
as the Borrower,
THE OTHER GUARANTORS PARTY HERETO FROM TIME TO
TIME,
CREDIT
SUISSEUBS AG, CAYMAN ISLANDS
BRANCH,
as Administrative Agent,
UBS
AG, STAMFORD BRANCH,
as
Collateral Agent, Swing Line Lender and L/C Issuer,
and
THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME
CREDIT
SUISSE SECURITIES (USA) LLCJPMORGAN
CHASE BANK, N.A.,
CITIGROUP
GLOBAL MARKETS INC.,
HSBC SECURITIES (USA) INC.,
GOLDMAN
SACHS BANK USA,
BARCLAYS
BANK PLC,
CIBC
WORLD MARKETS CORP.,
PNC
CAPITAL MARKETS LLC,
CITIBANKSANTANDER
BANK, N.A.
GOLDMAN SACHS LENDING PARTNERS
LLC,
MORGAN
STANLEY SENIOR FUNDING, INC.,
DEUTSCHE
BANK SECURITIES INC.,and
UBS SECURITIES LLC
and
MACQUARIE CAPITAL (USA) INC.,
as Amendment No. 9 Joint Lead Arrangers and Joint Bookrunners,
BLACKSTONE HOLDINGS FINANCE
CO. L.L.C.,
as Co-Manager
TABLE OF CONTENTS
|
|
Page |
ARTICLE I |
Definitions and Accounting Terms |
|
SECTION 1.01 |
Defined Terms |
1 |
SECTION 1.02 |
Other Interpretive Provisions |
7898 |
SECTION 1.03 |
Accounting Terms |
80103 |
SECTION 1.04 |
Rounding |
80103 |
SECTION 1.05 |
References to Agreements, Laws, Etc. |
80103 |
SECTION 1.06 |
Times of Day |
81104 |
SECTION 1.07 |
Timing of Payment or Performance |
81104 |
SECTION 1.08 |
Cumulative Credit Transactions |
81104 |
SECTION 1.09 |
Divisions |
81104 |
SECTION 1.10 |
Additional Approved Currencies |
104 |
|
|
|
ARTICLE II |
The Commitments and Credit Extensions |
|
SECTION 2.01 |
The Loans |
81105 |
SECTION 2.02 |
Borrowings, Conversions and Continuations of Loans |
82107 |
SECTION 2.03 |
Letters of Credit |
84109 |
SECTION 2.04 |
Swing Line Loans[Reserved] |
94122 |
SECTION 2.05 |
Prepayments |
97123 |
SECTION 2.06 |
Termination or Reduction of Commitments |
108137 |
SECTION 2.07 |
Repayment of Loans |
109138 |
SECTION 2.08 |
Interest |
111140 |
SECTION 2.09 |
Fees |
112141 |
SECTION 2.10 |
Computation of Interest and Fees |
113142 |
SECTION 2.11 |
Evidence of Indebtedness |
113142 |
SECTION 2.12 |
Payments Generally |
114143 |
SECTION 2.13 |
Sharing of Payments |
115145 |
SECTION 2.14 |
Incremental Credit Extensions |
116145 |
SECTION 2.15 |
Refinancing Amendments |
122153 |
SECTION 2.16 |
Extension of Term Loans; Extension of Revolving Credit Loans |
123155 |
SECTION 2.17 |
Defaulting Lenders |
126158 |
|
|
|
ARTICLE III |
Taxes, Increased Costs Protection and Illegality |
|
SECTION 3.01 |
Taxes |
128160 |
SECTION 3.02 |
Illegality |
130164 |
SECTION 3.03 |
Inability to Determine Rates |
131164 |
SECTION 3.04 |
Increased Cost and Reduced Return; Capital Adequacy; Reserves on RFR Loans |
132165 |
SECTION 3.05 |
Funding Losses.[Reserved] |
133166 |
Page
SECTION 3.06 |
Matters Applicable to All Requests for Compensation |
133167 |
SECTION 3.07 |
Replacement of Lenders under Certain Circumstances |
135168 |
SECTION 3.08 |
Survival |
136169 |
|
ARTICLE IV |
Conditions Precedent to Credit Extensions |
|
SECTION 4.01 |
Conditions to Initial Credit Extension |
136170 |
SECTION 4.02 |
Conditions to All Credit Extensions |
139173 |
|
ARTICLE V |
Representations and Warranties |
|
SECTION 5.01 |
Existence, Qualification and Power; Compliance with Laws |
140173 |
SECTION 5.02 |
Authorization; No Contravention |
140174 |
SECTION 5.03 |
Governmental Authorization; Other Consents |
141174 |
SECTION 5.04 |
Binding Effect.Execution, Delivery and Enforceability |
141174 |
SECTION 5.05 |
Financial Statements; No Material Adverse Effect |
141175 |
SECTION 5.06 |
Litigation |
142175 |
SECTION 5.07 |
[Reserved] |
142175 |
SECTION 5.08 |
Ownership of Property; Liens; Real Property |
142175 |
SECTION 5.09 |
Environmental Matters |
142176 |
SECTION 5.10 |
Taxes |
143176 |
SECTION 5.11 |
ERISA Compliance |
143177 |
SECTION 5.12 |
Subsidiaries; Equity Interests |
144177 |
SECTION 5.13 |
Margin Regulations; Investment Company Act |
144178 |
SECTION 5.14 |
Disclosure |
144178 |
SECTION 5.15 |
Labor Matters |
144178 |
SECTION 5.16 |
[Reserved] |
145178 |
SECTION 5.17 |
Intellectual Property; Licenses, Etc. |
145178 |
SECTION 5.18 |
Solvency |
145179 |
SECTION 5.19 |
Subordination of Junior Financing; First Lien Obligations. |
145179 |
SECTION 5.20 |
OFAC; USA PATRIOT Act; FCPA |
145179 |
SECTION 5.21 |
Security Documents |
146180 |
|
ARTICLE VI |
Affirmative Covenants |
|
SECTION 6.01 |
Financial Statements |
147181 |
SECTION 6.02 |
Certificates; Other Information |
148182 |
SECTION 6.03 |
Notices |
150184 |
SECTION 6.04 |
Payment of Obligations |
150184 |
SECTION 6.05 |
Preservation of Existence, Etc. |
150185 |
SECTION 6.06 |
Maintenance of Properties |
151185 |
SECTION 6.07 |
Maintenance of Insurance |
151185 |
SECTION 6.08 |
Compliance with Laws |
151186 |
SECTION 6.09 |
Books and Records |
152186 |
SECTION 6.10 |
Inspection Rights |
152186 |
Page
SECTION 6.11 |
Additional Collateral; Additional Guarantors |
152187 |
SECTION 6.12 |
Compliance with Environmental Laws |
154188 |
SECTION 6.13 |
Further Assurances |
154189 |
SECTION 6.14 |
Designation of Subsidiaries |
154189 |
SECTION 6.15 |
Maintenance of Ratings |
155190 |
SECTION 6.16 |
Post-Closing Covenants[Reserved] |
155190 |
SECTION 6.17 |
Transactions with Affiliates |
190 |
SECTION 6.18 |
Use of Proceeds |
191 |
SECTION 6.19 |
Accounting Changes |
192 |
SECTION 6.20 |
Change in Nature of Business |
192 |
|
ARTICLE VII |
Negative Covenants |
|
SECTION 7.01 |
Liens |
155192 |
SECTION 7.02 |
Investments |
160198 |
SECTION 7.03 |
Indebtedness |
163203 |
SECTION 7.04 |
Fundamental Changes |
169210 |
SECTION 7.05 |
Dispositions |
170212 |
SECTION 7.06 |
Restricted Payments |
173215 |
SECTION 7.07 |
Change in Nature of Business.[Reserved] |
176221 |
SECTION 7.08 |
Transactions with Affiliates.[Reserved] |
176221 |
SECTION 7.09 |
Burdensome Agreements |
177222 |
SECTION 7.10 |
Use of Proceeds.[Reserved] |
178223 |
SECTION 7.11 |
Financial Covenant |
178223 |
SECTION 7.12 |
Accounting Changes.[Reserved] |
179223 |
SECTION 7.13 |
Prepayments, Etc. of Indebtedness |
179224 |
SECTION 7.14 |
Permitted Activities |
180 |
|
ARTICLE VIII |
Events of Default and Remedies |
|
SECTION 8.01 |
Events of Default |
180226 |
SECTION 8.02 |
Remedies Upon Event of Default |
183229 |
SECTION 8.03 |
Exclusion of Immaterial Subsidiaries |
183229 |
SECTION 8.04 |
Application of Funds |
184230 |
SECTION 8.05 |
Borrower’s Right to Cure |
185231 |
Page
ARTICLE IX |
Administrative Agent and Other Agents |
|
SECTION 9.01 |
Appointment and Authorization of Agents |
185232 |
SECTION 9.02 |
Delegation of Duties |
186233 |
SECTION 9.03 |
Liability of Agents |
187233 |
SECTION 9.04 |
Reliance by Agents |
187234 |
SECTION 9.05 |
Notice of Default |
188234 |
SECTION 9.06 |
Credit Decision; Disclosure of Information by Agents |
188234 |
SECTION 9.07 |
Indemnification of Agents |
188235 |
SECTION 9.08 |
Agents in Their Individual Capacities |
189235 |
SECTION 9.09 |
Successor Agents |
189236 |
SECTION 9.10 |
Administrative Agent May File Proofs of Claim |
190237 |
SECTION 9.11 |
Collateral and Guaranty Matters |
191238 |
SECTION 9.12 |
Other Agents; Arrangers and Managers |
192239 |
SECTION 9.13 |
Withholding Tax Indemnity |
193240 |
SECTION 9.14 |
Appointment of Supplemental Agents |
193240 |
SECTION 9.15 |
Certain ERISA Matters |
241 |
SECTION 9.16 |
Erroneous Payments |
242 |
|
ARTICLE X |
Miscellaneous |
|
SECTION 10.01 |
Amendments, Etc. |
194244 |
SECTION 10.02 |
Notices and Other Communications; Facsimile Copies |
197248 |
SECTION 10.03 |
No Waiver; Cumulative Remedies |
198250 |
SECTION 10.04 |
Attorney Costs and Expenses |
198250 |
SECTION 10.05 |
Indemnification by the Borrower |
199251 |
SECTION 10.06 |
Payments Set Aside |
200252 |
SECTION 10.07 |
Successors and Assigns |
200253 |
SECTION 10.08 |
Confidentiality |
208263 |
SECTION 10.09 |
Setoff |
209264 |
SECTION 10.10 |
Interest Rate Limitation |
210264 |
SECTION 10.11 |
Counterparts |
210265 |
SECTION 10.12 |
Integration; Termination |
211265 |
SECTION 10.13 |
Survival of Representations and Warranties |
211265 |
SECTION 10.14 |
Severability |
211265 |
SECTION 10.15 |
GOVERNING LAW |
211266 |
SECTION 10.16 |
WAIVER OF RIGHT TO TRIAL BY JURY |
212266 |
SECTION 10.17 |
Binding Effect |
212267 |
SECTION 10.18 |
USA PATRIOT Act.; Beneficial Ownership |
213267 |
SECTION 10.19 |
No Advisory or Fiduciary Responsibility |
213267 |
SECTION 10.20 |
Electronic Execution of Assignments |
214268 |
SECTION 10.21 |
Effect of Certain Inaccuracies |
214268 |
SECTION 10.22 |
Judgment Currency |
214269 |
SECTION 10.23 |
Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions |
215269 |
SECTION 10.24 |
Cashless Rollovers |
270 |
SECTION 10.2410.25 |
Acknowledgement Regarding anyAny Supported QFCs |
215270 |
Page
ARTICLE XI |
Guaranty |
|
SECTION 10.25 |
Borrower Obligations |
216 |
SECTION 10.26 |
Restructuring Transactions |
217 |
SECTION 10.27 |
|
217 |
SECTION 11.01 |
The Guaranty |
219274 |
SECTION 11.02 |
Obligations Unconditional |
219274 |
SECTION 11.03 |
Reinstatement |
220275 |
SECTION 11.04 |
Subrogation; Subordination |
221275 |
SECTION 11.05 |
Remedies |
221276 |
SECTION 11.06 |
Instrument for the Payment of Money |
221276 |
SECTION 11.07 |
Continuing Guaranty |
221276 |
SECTION 11.08 |
General Limitation on Guarantee Obligations |
221276 |
SECTION 11.09 |
Information |
222276 |
SECTION 11.10 |
Release of Guarantors |
222276 |
SECTION 11.11 |
Right of Contribution |
222277 |
SECTION 11.12 |
UK Limitation on Guarantee Obligations |
277 |
SECTION 11.1211.13 |
Cross-Guaranty |
223278 |
SCHEDULES
| 1.01A | Commitments |
| 1.01B | Collateral Documents |
| 1.01C | Unrestricted Subsidiaries |
| 5.05 | Certain Liabilities |
| 5.06 | Litigation |
| 5.08 | Ownership of Property |
| 5.09(a) | Environmental Matters |
| 5.10 | Taxes |
| 5.11(a) | ERISA Compliance |
| 5.12 | Subsidiaries and Other Equity Investments |
| 6.01 | Borrower’s Website |
| 6.16 | Post-Closing
Covenants |
| 7.01(b) | Existing Liens |
| 7.02(f) | Existing Investments |
| 7.03(b) | Existing Indebtedness |
| 7.05(f) | Dispositions |
| 7.08 | Transactions with Affiliates |
| 7.09 | Certain Contractual Obligations |
| 10.02 | Administrative Agent’s Office, Certain Addresses for Notices |
| 10.02(a) | Notice Information |
EXHIBITS
Form of
| A | Committed Loan Notice |
| B | Letter of Credit Issuance Request |
| C | Swing Line Loan Notice[Reserved] |
| D-1 | Term Note |
| D-2 | Revolving Credit Note |
| D-3 | Swing
Line Note |
| E-1 | Compliance Certificate |
| E-2 | Solvency Certificate |
| F | Assignment and Assumption |
| G | Security Agreement |
| H | Perfection Certificate |
| I | Intercompany Note |
| J-1 | First LienEqual
Priority Intercreditor Agreement |
| J-2 | ABLJunior
Priority Intercreditor Agreement |
|
LK |
Administrative Questionnaire |
|
ML-1 |
Affiliated Lender Assignment and Assumption |
|
ML-2 |
Affiliated Lender Notice |
|
ML-3 |
Acceptance and Prepayment Notice |
|
ML-4 |
Discount Range Prepayment Notice |
|
ML-5 |
Discount Range Prepayment Offer |
|
ML-6 |
Solicited Discounted Prepayment Notice |
|
ML-7 |
Solicited Discounted Prepayment Offer |
|
ML-8 |
Specified Discount Prepayment Notice |
|
ML-9 |
Specified Discount Prepayment Response |
|
NM |
United States Tax Compliance Certificate |
| O | Co-Borrower
Joinder Agreement |
CREDIT AGREEMENT
This CREDIT AGREEMENT (as
the same may be amended, modified, refinanced and/or restated from time to time, this
“Agreement”) is entered into as of July 3, 2014, (as
amended by Amendment No. 1 on April 7, 2017, as amended by Amendment No. 2 on November 22, 2017, as amended by Amendment
No. 3 on January 24, 2018, as amended by Amendment No. 4 on February 24, 2021, as amended by Amendment No. 5
on November 18, 2021, as amended by Amendment No. 6 on November 16, 2022, as amended by Amendment No. 7 on March 1,
2023 and, as amended by Amendment No. 8
on October 10, 2023 among omaha holdings llc, a
Delaware limited liability company, Gates global llc, a Delaware limited liability company
and as amended by Amendment No. 9 on June 4, 2024 and as further amended, modified,
refinanced and/or restated from time to time, this “Agreement”), among Gates
Industrial Holdco Limited, a corporation incorporated under the laws of England and Wales, with registered number 10986334 having
its registered office at 1 Bartholomew Lane, London, England, EC2N 2AX, Gates Corporation,
a Delaware corporation (the “Borrower”), the Guarantors party hereto from time to time, CREDIT
SUISSEUBS AG, CAYMAN ISLANDS
BRANCH, as Administrative Agent, UBS AG, STAMFORD BRANCH, as Collateral Agent,
Swing Line Lender and L/C Issuer, and each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”).
PRELIMINARY STATEMENTS
Pursuant to Amendment No. 7,
and upon satisfaction of the conditions set forth therein, the Original Credit Agreement is being amended in the form of this Agreement.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01 Defined
Terms.
As used in this Agreement,
the following terms shall have the meanings set forth below:
“2026
Dollar Senior Notes” means collectively the Dollar-denominated unsecured notes of the Borrower and Gates Global Co. due 2026
in an aggregate principal amount of $568,000,000 issued
November 2019.
“ABL Collateral Agent”
means Citibank, N.A. and any successor, as agent under the ABL Credit Agreement, or if there is no ABL Credit Agreement, the “ABL
Collateral Agent” designated pursuant to the terms of the ABL Debt.
“ABL
Credit Agreement” means the loan and security agreement, to be dated as
of the Closing Date among the Borrower, Holdings I, certain other Subsidiaries of the Borrower, the ABL
Collateral Agent and the other financial institutions party thereto, as amended, restated, supplemented or otherwise modified from
time to time.
“ABL Debt”
means (1) any Indebtedness outstanding from time to time under the ABL Credit Agreement, (2) all obligations with respect to
such Indebtedness and any Swap Contract incurred with any ABL Lender (or its Affiliates) and secured by the ABL Facility Collateral and
(3) all Treasury Services Agreement incurred with any ABL Lender (or its Affiliates) and secured by the ABL Facility Collateral.
“ABL Facility Collateral”
has the meaning given to such term in the ABL Intercreditor Agreement.
“ABL
Intercreditor Agreement” means an intercreditor agreement substantially in the form of
Exhibit J-2 (which agreement in such form or
with immaterial changes thereto the Collateral Agent is authorized to enter into) among Holdings I, the Borrower, the Subsidiaries of
the Borrower from time to time party thereto, the Collateral Agent, the ABL Collateral Agent and one or more collateral agents or representatives
for the holders of Indebtedness that is permitted under Section 7.03 to be, and intended to be, secured on a pari passu basis
with the Liens securing the Obligations.
“ABL Lender”
means any lender or holder or agent or arranger of Indebtedness under the ABL Credit Agreement.
“ABL Priority Collateral”
has the meaning given to such term in the ABL Intercreditor Agreement.
“Acceptable Discount”
has the meaning set forth in Section 2.05(a)(v)(D)(2).
“Acceptable
Jurisdiction” means each of the United States, Bermuda, the Cayman Islands, Luxembourg, England and Wales, the Netherlands, Ireland,
Belgium and Switzerland.
“Acceptable Prepayment
Amount” has the meaning set forth in Section 2.05(a)(v)(D)(3).
“Acceptance and Prepayment
Notice” means a notice of the Borrower’s acceptance of the Acceptable Discount in substantially the form of Exhibit ML-3.
“Acceptance Date”
has the meaning set forth in Section 2.05(a)(v)(D)(2).
“Acquired EBITDA”
means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period
of Consolidated EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary (determined as if references to the
BorrowerHoldings and the Restricted Subsidiaries in the definition of Consolidated
EBITDA were references to such Acquired Entity or Business and its Subsidiaries or to such Converted Restricted Subsidiary and its Subsidiaries),
as applicable, all as determined on a consolidated basis for such Acquired Entity or Business or Converted Restricted Subsidiary, as
applicable.
“Acquired Entity or
Business” has the meaning set forth in the definition of the term “Consolidated EBITDA.”
“Acquisition”
means the acquisition by Omaha Acquisition Inc., directly or indirectly, of all of the outstanding class A and class B shares of the
Company on the terms and subject to the conditions set forth in the Purchase Agreement.
“Additional B-3-4
Dollar Term Commitments” means, with respect to the Additional B-3-4
Dollar Term Lender, its commitment to make an Initial B-3-4
Dollar Term Loans on the Amendment No. 46
Effective Date in an amount equal to $272,077,056.06 (which amount represents the entire
aggregate principal amount of the Initial B-2 Dollar
Term Loans outstanding immediately prior to the Amendment No. 4
Effective Date minus the aggregate principal amount of Converted Initial B-2 Dollar Term Loans on the Amendment No. 4 Effective
Date).575,000,000.
“Additional
B-3-4 Dollar Term Lender”
means the Person identified as such in Amendment No. 46.
“Additional B-4-5
Dollar Term Commitments” means, with respect to the Additional B-4-5
Dollar Term Lender, its commitment to make Initial B-4-5
Dollar Term Loans on the Amendment No. 69
Effective Date in an amount equal to $575,000,0001,300,000,000.
“Additional
B-4-5 Dollar Term Lender”
means the Person identified as such in Amendment No. 69.
“Additional Lender”
has the meaning set forth in Section 2.14(c).
“Additional Notes”
means the aggregate principal amount of $150,000,000 of Dollar Senior Notes issued by the Borrower on March 30, 2017 pursuant to
the Senior Notes Indenture.
“Additional Refinancing
Lender” has the meaning set forth in Section 2.15(a).
“Adjusted Daily Simple
SOFR” means, for any Interest Period, a rate per annum equal to Daily Simple SOFR plus 0.10%; provided that if Adjusted
Daily Simple SOFR would be less than the Applicable Term SOFR Floor, such rate shall be deemed equal to the Applicable Term SOFR Floor.
“Adjusted Term SOFR”
means, for any Interest Period, a rate per annum equal to Term SOFR plus 0.10%; provided that if Adjusted Term SOFR would be less
than the Applicable Term SOFR Floor, such rate shall be deemed to be equal to the Applicable Term SOFR Floor.
“Administrative Agent”
means Credit SuisseUBS AG,
Cayman Islands Branch, in its capacity as administrative agent under any of the Loan Documents, or any successor administrative
agent.
“Administrative Agent’s
Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02, or such other address
or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire”
means an Administrative Questionnaire in the form of Exhibit LK
or such other form as may be supplied from time to time by the Administrative Agent.
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled
by or is under common Control with the Person specified. “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.
“Affiliated Lender”
means, at any time, any Lender that is a direct or indirect holding company of Holdings or an
Investor (including portfolio companies of the Investors notwithstanding the exclusion in the definition of “Investors”)
(other than Holdings, the Borrower or any of its Subsidiaries and other than any Debt Fund Affiliate) or a Non-Debt Fund Affiliate of
an Investor at such time.
“Affiliated Lender
Assignment and Assumption” has the meaning set forth in Section 10.07(l)(i).
“Affiliated Lender
Cap” has the meaning set forth in Section 10.07(l)(iii).
“Affiliated
Lender Notice” means the notice substantially in the form of Exhibit L-2.
“Agent-Related Persons”
means the Agents, together with their respective Affiliates, and the officers, directors, employees, partners, agents, advisors, attorneys-in-fact
and other representatives of such Persons and Affiliates.
“Agents”
means, collectively, the Administrative Agent, the Collateral Agent, the Lead Arrangers, the Co-Manager and the Supplemental Agents (if
any).
“Aggregate Commitments”
means the Commitments of all the Lenders.
“Agreement”
means this Credit Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
“All-In Yield”
means, as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, OID,
upfront fees or Term SOFR or Base Rate floor; provided that OID and upfront fees shall be equated to interest rate assuming a
4-year life to maturity (or, if less, the stated life to maturity at the time of its incurrence of the applicable Indebtedness); and
provided, further, that “All-In Yield” shall not include on
any date of determination, the effective yield paid by the Borrower on such Indebtedness as determined by the Borrower in consultation
with the Administrative Agent in a manner consistent with generally accepted financial practices, taking into account (a) the applicable
interest rate margins, (b) any interest rate “floors” (the effect of which floors shall be determined in a manner set
forth in the proviso below and assuming that, if interest on such Indebtedness is calculated on the basis of a floating rate, that “Term
SOFR” or any similar component of such formula is included in the calculation of All-In Yield) or similar devices, (c) any
amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) all
fees, including upfront or similar fees or OID (amortized over the shorter of (x) the remaining Weighted Average Life to Maturity
of such Indebtedness and (y) the four years following the date of incurrence thereof) payable generally by or on behalf of the Borrower
to Lenders or other institutions providing such Indebtedness, but excluding arrangement fees, structuring fees, commitment
fees, underwriting fees, consent fees paid to consenting lenders, ticking fees on undrawn commitments
or other feesclosing payments, call protection or other similar fees, in each case
payable to any lead arranger (or its, bookrunner, manager,
agent or Person in a similar capacity (or their affiliates) in connection with the commitment or,
syndication, marketing or offering of such Indebtedness.
and not payable to all Lenders, and customary consent or amendment fees paid generally
to consenting Lenders (other than solely in connection with a Repricing Transaction), ticking fees accruing prior to the funding of any
such Indebtedness and any other fees of the type not paid or payable generally by or on behalf of the Borrower to Lenders or other institutions
in connection with the commitment, marketing or offering of such Indebtedness; provided that, with respect to any Indebtedness that includes
a “floor”, (A) to the extent that Term SOFR (for a period of three months) or any Successor Alternative Benchmark Rate
on the date that the All-In Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to
the interest rate floor (or, at the option of the Borrower, the interest rate margin in lieu of adding the amount of such difference
to the interest rate floor) for such Indebtedness for the purpose of calculating the All-In Yield and (B) to the extent that Term
SOFR (for a period of three months) or any Successor Alternative Benchmark Rate on the date that the All-In Yield is being calculated
is greater than such floor, then the interest rate floor shall be disregarded in calculating the All-In Yield.
“Amendment No. 1”
means Amendment No. 1 to this Agreement dated as of April 7, 2017.
“Amendment No. 1
Effective Date” means April 7, 2017.
“Amendment No. 2”
means Amendment No. 2 to this Agreement dated as of November 22, 2017.
“Amendment No. 2
Effective Date” means November 22, 2017.
“Amendment No. 34”
means Amendment No. 34 to this Agreement
dated as of JanuaryFebruary 24, 20182021.
“Amendment No. 34
Effective Date” means January 29, 2018February 24,
2021.
“Amendment No. 46”
means Amendment No. 46 to this Agreement
dated as of February 24, 2021November 16,
2022.
“Amendment No. 46
Arrangers” has the meaning set forth in Amendment No. 46.
“Amendment No. 46
Effective Date” means February 24, 2021November 16,
2022.
“Amendment No. 57”
means Amendment No. 57 to this Agreement
dated as of November 18March 1,
20212023.
“Amendment
No. 5 Arrangers” has the meaning set forth in Amendment
No. 5.
“Amendment No. 57
Effective Date” means November 18March 1,
20212023.
“Amendment
No. 68” means Amendment No. 68
to this Agreement dated as of November 16, 2022October 10,
2023.
“Amendment
No. 68 Arrangers”
has the meaning set forth in Amendment No. 68.
“Amendment
No. 68 Effective Date”
means November 16, 2022October 10, 2023.
“Amendment
No. 79” means Amendment No. 79
to this Agreement dated as of March 1June 4,
20232024.
“Amendment No. 7
Effective Date” means March 1, 2023.
“Amendment
No. 8” means Amendment No. 8 to this Agreement dated as of October 10, 2023.
“Amendment No. 89
Arrangers” has the meaning set forth in Amendment No. 89.
“Amendment No. 89
Effective Date” means October 10June 4,
20232024.
“Applicable
Asset Sale Percentage” means (a) 100.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the most
recently ended period of four consecutive fiscal quarters for which financial statements are internally available is greater than 1.50
to 1.00, (b) 50.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended period of four
consecutive fiscal quarters for which financial statements are internally available is equal to or less than 1.50 to 1.00 and greater
than 1.00 to 1.00 and (c) 0.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended period
of four consecutive fiscal quarters for which financial statements are internally available is equal to or less than 1.00 to 1.00, in
each case, calculated on a Pro Forma Basis after giving effect to such Disposition and related prepayment; provided that, for the avoidance
of doubt, if, after giving effect to such Disposition and related prepayment, more than one of the preceding subclauses would be applicable,
the subclause with the lowest percentage shall apply.
“Applicable Authority”
means the Term SOFR Administrator or a Governmental Authority having jurisdiction over the Administrative Agent.
“Applicable Discount”
has the meaning set forth in Section 2.05(a)(v)(C)(2).
“Applicable ECF Percentage”
means, for any fiscal year, (a) 50.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of such fiscal year is
greater than 4.25 to 1.00, (b) 25.0% if the Consolidated First Lien Net Leverage Ratio as of the last day of such fiscal year is
less than or equal to 4.25 to 1.00 and greater than 3.75 to 1.00 and (c) 0.0% if the Consolidated First Lien Net Leverage Ratio
as of the last day of such fiscal year is less than or equal to 3.75 to 1.00.,
in each case, calculated on a Pro Forma Basis, after giving effect to the required prepayment of the ECF Payment Amount pursuant to Section 2.05(b)(i);
provided that, for the avoidance of doubt, if, after giving effect to such prepayment more than one of the preceding subclauses would
be applicable, the subclause with the lowest percentage shall apply.
“Applicable Period”
has the meaning set forth in Section 10.21.
“Applicable
Proceeds” has the meaning set forth in Section 2.05(b)(ii).
“Applicable Rate”
means:
(a) with
respect to the Initial Term Loans, a percentage per annum equal to:
(i) with
respect to Initial B-3-4 Dollar Term Loans:
(A) until
delivery of financial statements for the first full fiscal quarter ending after the Amendment No. 4 Effective Date pursuant to Section 6.01,
a percentage per annum equal to (1) for Term SOFR Loans, 2.752.25%
and (2) for Base Rate Loans, 1.751.25%;
and
(B) thereafter,
the following percentages per annum, based upon the Consolidated Total Net Leverage
Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
Applicable
Rate
|
Pricing
Level
|
Consolidated
Total Net
Leverage Ratio
|
Term
SOFR
for Initial B-3
Dollar Term Loans
|
Base
Rate for
Initial B-3 Dollar
Term Loans
|
1 |
> 3.75:1.00 |
2.75% |
1.75% |
2 |
≤ 3.75:1.00 |
2.50% |
1.50% |
(ii) with
respect to Initial B-4-5 Dollar Term Loans,
a percentage per annum equal to (1) for Term SOFR Loans, 3.002.25%
and (2) for Base Rate Loans, 2.001.25%;
(b) with
respect to Revolving Credit Loans,
(i) until delivery
of financial statements for the first full fiscal quarter ending after the Closing Date, pursuant to Section 6.01, a percentage
per annum equal to: (A) for Term SOFR Loans, RFR Loans and Letter of Credit fees, 2.75%, (B) for Base Rate Loans, 1.75% and
(C) for facility fees on the Revolving Credit Commitments, 0.50%; and
(iib) thereafterwith
respect to Revolving Credit Loans, the following percentages per annum, based upon the Consolidated First Lien Net Leverage
Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
Applicable
Rate
|
Pricing
Level |
Consolidated
First Lien Net
Leverage Ratio |
Term SOFR
and RFR for
Revolving Credit
Loans and Letter
of Credit Fees |
Base Rate
for
Revolving
Credit Loans |
Facility
Fee Rate
|
1 |
> 4.002.00:1.00 |
2.752.25% |
1.751.25% |
0.50% |
2 |
≤ 4.002.00:1.00
and
> 3.001.00:1.00 |
2.502.00% |
1.501.00% |
0.375% |
3 |
≤
3.001.00:1.00 |
2.251.75% |
1.250.75% |
0.375% |
Any increase or decrease in
the Applicable Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio or Consolidated
Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(a); provided that at the option of the Administrative Agent or the
applicable Required Class Lenders, the highest pricing level (i.e., Pricing Level 1) shall apply (x) as of the first
Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue
to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the pricing level otherwise
determined in accordance with this definition shall apply) and (y) as of the first Business Day after an Event of Default under
Section 8.01(a) 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 pricing level otherwise determined in accordance with this definition shall
apply).
“Applicable
Term SOFR Floor” means the Term SOFR floor applicable to any Facility under which a Loan is being made and (a) solely
with respect to the New Revolving Credit Facility, means 0.00% per annum, (b) solely
with respect to the Initial B-3-4 Dollar
Term Loans, means 0.75 0.50% per annum
and (c) solely with respect to the Initial B-4-5
Dollar Term Loans, means 0.50% per annum.
“Appropriate Lender”
means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class, and
(b) with respect to Letters of Credit, (i) the relevant L/C Issuer and (ii) the Revolving Credit Lenders and
(c) with respect to the Swing Line Facility, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding
pursuant to Section 2.04(a), the Revolving Credit Lenders.
“Approved Counterparty”
means (i) any Agent, Lender or any Affiliate of an Agent or Lender at the time (or
after) it entered into a Secured Hedge AgreementSwap
Contract or a Treasury Services Agreement, as applicable, in its capacity as a party thereto, in
each case notwithstanding whether such Approved Counterparty may cease to be an Agent, Lender or an Affiliate of an Agent
or Lender after entering into suchthereafter, as applicable
and (ii) any other Person from time to time selected by Borrower who has executed and delivered to the Administrative Agent a customary
joinder or acknowledgment agreement affirming the designation of the Administrative Agent as its agent and the other terms applicable
to Secured Hedge Agreements or Treasury Services Agreements,
as applicable set forth in Article IX.
“Approved Currency”
means each of (x)(i) Dollars, (ii) euros, (iii) Sterling and (iv) Yen
and (y) solely with respect to Letters of Credit, (i) Canadian dollars, (ii) United Arab
Emirates dirhams and (iii) Polish złoty.
“Approved Foreign
Currency” means any Approved Currency other than Dollars.
“Approved Fund”
means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of
such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender,
in each case other than any Fund that is a Disqualified Lender.
“Asian JV”
means Gates Unitta Asia Company (organized under the laws of Japan), Gates KoreaUnitta
Asia Trading Company LimitedPte Ltd
(organized under the laws of Korea), Gates Unitta Asia Trading Company PTE LTD (organized under the
laws of Singapore), Gates Unitta India Company Private Limited (organized under the laws of India), Gates Unitta Korea
Co., Ltd. (organized under the laws of Korea), Gates Nitta Belt Company, LLC.L.C.
(organized under the laws of Delaware) and Gates Unitta (Thailand) Co., Ltd.
(organized under the laws of Thailand), or wholly owned subsidiaries thereof and any successor entities of the foregoing.
“Assignees”
has the meaning set forth in Section 10.07(b)(i).
“Assignment and Assumption”
means an Assignment and Assumption substantially in the form of Exhibit F, or such other form as
agreed to by the Administrative Agent.
“Assignment Taxes”
has the meaning set forth in Section 3.01(b).
“Attorney Costs”
means and includes allthe reasonable and
documented out-of-pocket fees, expenses
and disbursementsother charges of any law
firm or other external legal counsel.
“Attributable
Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP.
“Auction Agent”
means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not
an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.05(a)(v);
provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the
Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent);
provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.
“Audited Financial
Statements” means the audited consolidated balance sheets of the Company and its Subsidiaries as of each of December 31,
2013 and 2012 and the audited consolidated statements of operations, comprehensive income, cash flows and equity of the Company and its
Subsidiaries for the fiscal years ended December 31, 2013, 2012 and 2011.
“Auto-Extension Letter
of Credit” has the meaning set forth in Section 2.03(b)(iii).
“Available Incremental
Amount” has the meaning set forth in Section 2.14(d)(v).
“Available
RP Capacity Amount” means (i) the amount of Restricted Payments that may be made at the time of determination
pursuant to Sections 7.06(d), (g), (h), (l) and (p), minus (ii) the sum of the amount of the Available RP Capacity Amount utilized
by Holdings or any Restricted Subsidiary to (A) make Restricted Payments in reliance on Sections 7.06(d), (g), (h), (l) or
(p), (B) make Investments pursuant to Section 7.02(n)(z) and (C) make prepayments, redemptions, purchases, defeasances
and other payments in respect of Junior Financings prior to their scheduled maturity utilizing the Available RP Capacity Amount pursuant
to Section 7.13(a)(vi) .
“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, rule, regulation or requirement for such EEA Member Country from time
to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than
through liquidation, administration or other insolvency proceedings).
“Base Rate”
means, for any day, a rate per annum equal to the greatest of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%, (b) the
Prime Rate in effect for such day and (c) (i) with respect to Initial B-3 Dollar Term Loans,
Adjusted Term SOFR and (ii) with respect to Revolving Credit Loans and, Initial
B-4 Dollar Term Loans and Initial B-5 Dollar Term Loans, Term SOFR, in each case, on such
day (or if such day is not a Business Day, the immediately preceding Business Day) for deposits in Dollars for a one-month Interest Period
plus 1.00%; provided that, for the avoidance of doubt, Term SOFR for any day shall be based on the Term SOFR Reference Rate, at
approximately 5:00 p.m. (Chicago time) two U.S. Government Business Days prior to such
day, for a term of one month commencing on such day; provided, further that, for the avoidance of doubt, (x) solely
with respect to the Initial B-3 Dollar Term Loans,
the Base Rate shall be deemed to be not less than 1.75% per annum and
(y) solely with respect to the Initial B-4 Dollar Term Loans, the Base Rate shall be deemed to be not less than
1.50% per annum and (y) solely with respect to the Initial B-5 Dollar Term Loans, the Base Rate
shall be deemed to be not less than 1.50% per annum. If the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate for any reason, including the inability
or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Base
Rate shall be determined without regard to clause (a) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Term SOFR shall be
effective on the effective date of such change in the Prime Rate, the Federal Funds Rate or Term SOFR, as the case may be.
“Base Rate Loan”
means a Loan denominated in Dollars that bears interest based on the Base Rate.
“Base Rate Term SOFR
Determination Day” has the meaning set forth in the definition of “Term SOFR”.
“Benchmark Discontinuation
Event” has the meaning set forth in the definition of “RFR.”
“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 and subject to Section 4975 of the Code or (c) any Person whose assets include
(for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets
of any such “employee benefit plan” or “plan”.
“BFEA
EURIBOR” has the meaning provided in the definition of “EURIBO Rate”.
“BHC
Act Affiliate” has the meaning set forth in Section 10.25(b).
“Blackstone Funds”
means, individually or collectively, Blackstone Inc. and its Affiliates and any investment
fund, partnership, co-investment vehicles and/or other similar vehicles or accounts, in each
case managed by an Affiliate of, advised or controlled
by, Blackstone Inc. or one or more of its Affiliates, or any of
their respective successors of any of the foregoing.
“Bona
Fide Debt Fund” means any fund or investment vehicle that is primarily engaged in the making, purchasing, holding or otherwise
investing in commercial loans, bonds and other similar extensions of credit in the ordinary course.
“Borrower”
has the meaning set forth in the introductory paragraph to this Agreement. Subject to Section 10.25(a) andFor
the avoidance of doubt, after the Amendment No. 69
Effective Date, solely with respect
to the Initial B-4 Dollar Term Loans and the Initial B-4 Dollar Term Loan Obligations, references herein (including,
for the avoidance of doubt, Section 7.04) and in the other Loan Documents to the Borrower shall be deemed to refer to the
Borrower and each Co-BorrowerGates Corporation.
“Borrower Materials”
has the meaning set forth in Section 6.02.
“Borrower Offer of
Specified Discount Prepayment” means the offer by any Company Party to make a voluntary prepayment of Term Loans at a Specified
Discount to par pursuant to Section 2.05(a)(v)(B).
“Borrower Solicitation
of Discount Range Prepayment Offers” means the solicitation by any Company Party of offers for, and the corresponding acceptance
by a Lender of, a voluntary prepayment of Term Loans at a specified range of discounts to par pursuant to Section 2.05(a)(v)(C).
“Borrower Solicitation
of Discounted Prepayment Offers” means the solicitation by any Company Party of offers for, and the subsequent acceptance,
if any, by a Lender of, a voluntary prepayment of Term Loans at a discount to par pursuant to Section 2.05(a)(v)(D).
“Borrowing”
means a Revolving Credit Borrowing, a Swing Line Borrowing or a Term Borrowing of a
particular Class, as the context may require.
“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state of New York or the state where the Administrative Agent’s
Office is located and if such day relates to any interest rate settings as to a Term SOFR Loan oran
RFR Loan, any fundings, disbursements, settlements and payments in respect of any such Term
SOFR Loan or RFR Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Term
SOFR Loan or RFR Loan, means a day (a) if such RFR Loan is denominated in euros, on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) SystemT2
is open, (b) if such day relates to any fundings, disbursements, settlements or payments in connection with a Revolving
Credit Loan or Letter of Credit denominated in Sterling and in relation to the calculation and computation for SONIA, means any day other
than a Saturday, Sunday or other day on which banks are closed for general business in London and (c) if such day relates to any
fundings, disbursements, settlements or payments in connection with a Revolving Credit Loan or Letter of Credit denominated in Japanese
Yen and in relation to the calculation and computation for TIBOR, means any such day, on which banks are open for foreign exchange business
in Tokyo, Japan; provided, however, that, when used in connection with a Term SOFR Loan or a Daily SOFR Loan, as
applicable, the term “Business Day” shall mean a U.S. Government Securities Business Day.
“Capital Expenditures”
means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events
all amounts expended or capitalized under CapitalizedFinancing
Leases) by Holdings and the Borrower and its Restricted
Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures or
purchases of equipment and leasehold improvements on the consolidated statement of cash flows of Holdings
and the Borrower and its Restricted Subsidiaries.
“Capitalized
Lease Obligation” means, at the
time any determination thereof is to be made, the amount of the liability in respect of a Capitalized
Lease; provided that any obligations of the Borrower or
its Restricted Subsidiaries either existing on the Closing Date or created prior to any recharacterization described below (i) that
were not included on the consolidated balance sheet of the Borrower as capital
lease obligations and (ii) that are subsequently recharacterized as capital lease obligations
or indebtedness due to a change in accounting treatment or otherwise, shall for all purposes under this Agreement (including, without
limitation, the calculation of Consolidated Net Income and Consolidated EBITDA) not be treated as capital
lease obligations, Capitalized Lease Obligations or Indebtedness.
“Capitalized
Leases” means all leases that have
been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided
that for all purposes hereunder the amount of obligations under any Capitalized
Lease shall be the amount thereof accounted for as a liability on a balance sheet in accordance with
GAAP; provided, further, that for purposes of calculations made pursuant to the terms of this
Agreement, GAAP will be deemed to treat leases in a manner consistent with its current treatment under generally accepted accounting
principles as of the Closing Date, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.
“Capitalized Software
Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by
the BorrowerHoldings and the Restricted Subsidiaries
during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity
with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the
BorrowerHoldings and the Restricted Subsidiaries.
“Cash Collateral”
has the meaning set forth in Section 2.03(g).
“Cash Collateral Account”
means a blocked account at a commercial bank specified by the Administrative Agent in the name of the Administrative Agent and under
the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative
Agent.
“Cash Collateralize”
has the meaning set forth in Section 2.03(g). “Cash Collateralized” and
“Cash Collateralizing” have the meanings correlative thereto.
“Cash Equivalents”
means any of the following types of Investments, to the extent owned by the BorrowerHoldings
or any Restricted Subsidiary:
(1) Dollars;
(2) (a)
Canadian dollars, Sterling, Yen, euros or any national currency of any Participating Member State of the EMUEconomic
and Monetary Union (EMU) or other currencies held by Holdings or the Restricted Subsidiaries from time to time in the ordinary course
of business or consistent with past practice or industry norm; or
(b) cash
in such local currencies held by the BorrowerHoldings
or any Restricted Subsidiary from time to time in the ordinary course of business or consistent
with industry practices;
(3) securities
issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof
the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24
months or less from the date of acquisition;
(4) certificates
of deposit, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, demand deposits,
bankers’ acceptances with maturities not exceeding one year24
months and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of
not less than $250.0 million in the case of U.S. banks and $100.0 million100,000,000
(or the Ddollar Eequivalent
thereof in foreign currencies as of the date of determination) in
the case of non-U.S. banks;
(5) repurchase
obligations for underlying securities of the types described in clauses (3), (4), (7) and (8) entered into with any financial
institution or recognized securities dealer meeting the qualifications specified in clause (4) above;
(6) commercial
paper and variable or fixed rate notes rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s
nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical Rating Agency) and
in each case maturing within 24 months after the date of creation thereof;
(7) marketable
short-term money market and similar funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or,
if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized
statistical Rating Agency);
(8) readily
marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing
authority thereof having an investment grade rating from either Moody’s or S&P (or, if at any time neither Moody’s nor
S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical Rating Agency) with maturities
of 24 months or less from the date of acquisition;
(9) readily
marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each
case having an investment grade rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall
be rating such obligations, an equivalent rating from another nationally recognized statistical Rating Agency) with maturities of 24
months or less from the date of acquisition;
(10) Investments
with average maturities of 1224 months or
less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent
thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent
rating from another nationally recognized statistical Rating Agency);
(11) securities
with maturities of 1224 months or less from
the date of acquisition backed by standby letters of credit issued by any financial institution or recognized securities dealer meeting
the qualifications specified in clause (4) above;
(12) Indebtedness
or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s
with maturities of 24 months or less from the date of acquisition; and
(13) investment
funds investing at least 90% of their assets in securities of the types described in clauses (1) through (12) above.
In the case of Investments
by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash
Equivalents shall also include (a) investments of the type and maturity described in clauses (1) through (8) and clauses
(10), (11), (12) and (13) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings
described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) other short-term investments utilized
by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments
analogous to the foregoing investments in clauses (1) through (13) and in this paragraph.
In addition,
in the case of Investments by any captive insurance subsidiary, Cash Equivalents shall also include (a) such Investments with average
maturities of twelve months or less from the date of acquisition in issuers rated BBB- (or the equivalent thereof) or better by S&P
or Baa3 (or the equivalent thereof) or better by Moody’s, in each case at the time of such Investment and (b) any Investment
with a maturity of more than twelve months that would otherwise constitute Cash Equivalents of the kind described in any of clauses (1) through
(13) of this definition or clause (a) above, if the maturity of such Investment was twelve months or less; provided that the effective
maturity of such Investment does not exceed 15 years.
Notwithstanding the foregoing,
Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided
that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event
within ten (10) Business Days following the receipt of such amounts.
For the avoidance of doubt,
any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes regardless of the
treatment of such items under GAAP.
“Casualty Event”
means any event that gives rise to the receipt by the BorrowerHoldings
or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or
rReal pProperty
(including any improvements thereon) to replace or repair such equipment, fixed assets
or rReal pProperty.
“CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as subsequently amended, and the regulations
promulgated thereunder.
“CFC” means
a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.
“Change of Control”
shall be deemed to occur if:
(a) at
any time prior to a Qualified IPO, any combination of Permitted Holders shall fail to own beneficially (within
the meaning of Rule 13d-5 of the Exchange Act as in effect on
the Closing Date), directly or indirectly, in the aggregate Equity Interests representing at least a
majority of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests
of Holdings;
(ba) at
any time after a Qualified IPO, any person or “group” (within the meaning of Rules 13d-3 andor
13d-5 under the Exchange Act as in effect on the Closing Date), other than (i) any
combination of the Investors orand/or the Permitted
Holders or (ii) any “group” including any Permitted Holders (provided that
Permitted Holders beneficially own more than 50% of all Voting Stock beneficially owned by such “group”), shall
have acquired beneficial ownership of 35% or (within
the meaning of Rule 13d-3 under the Exchange Act as in effect on the Closing Date) of more than
50%, on a fully diluted basis, of the total voting
interest in Holdings I’s Equity Interests and the Permitted Holders shall own, directly or indirectly,
less than such person or “group” on a fully diluted basis of the voting interest in Holdings’ Equity Interests;power
of the Voting Stock of Holdings’, in each case, other than in connection with any transaction or series of transactions in which
Holdings shall become the wholly owned Subsidiary of a Holding Company;
(cb) a
“change of control” (or similar event) shall occur under the ABL Credit Agreement, the Senior
Notes or any other Indebtedness for borrowed money permitted under Section 7.03 with an aggregate outstanding principal amount
in excess of the Threshold Amount or any Permitted Refinancing Indebtedness in respect of any of the foregoing with an aggregate outstanding
principal amount in excess of the Threshold Amount; or
(dc) Holdings
shall cease to own directly or indirectly 100% of the Equity
InterestsVoting Stock of the Borrower.
Notwithstanding
anything to the contrary in this definition or any provision of Rule 13d-3 and 13d-5 of the Exchange Act (or any successor provision),
(i) a Person or group shall not be deemed to beneficially own Voting Stock (x) to be acquired by such Person or group pursuant
to an equity 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 Voting Stock in connection with the transactions
contemplated by such agreement or (y) solely as a result of veto or approval rights in any joint venture agreement, shareholder
agreement, investor rights agreement or other similar agreement, (ii) if any group (other than a Permitted Holder) includes one
or more Permitted Holders, the issued and outstanding Voting Stock of the Borrower owned, directly or indirectly, by any Permitted Holders
that are part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes
of determining whether a Change of Control has occurred, (iii) a Person or group (other than Permitted Holders) will not be deemed
to beneficially own Voting Stock of another Person as a result of its ownership of Equity Interests or other securities of such other
Person’s direct or indirect parent holding companies (or related contractual rights) unless it owns more than 50% of the total
voting power of the Voting Stock of such Person’s direct or indirect parent holding companies and (iv) the right to acquire
Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto
power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a beneficial owner.
For purposes
of this definition and any related definition to the extent used for purposes of this definition, at any time when 50.0% or more of the
total voting power of the Voting Stock of Holdings is directly or indirectly owned by parent holding companies, all references to Holdings
shall be deemed to refer to its ultimate parent holding company (but excluding any Permitted Holder) that directly or indirectly owns
such Voting Stock.
“Class”
(a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of
Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are New
Revolving Credit Commitments, Extended Revolving Credit Commitments of a given Extension
Series, Extended Term Loans of a given Extension Series, Revolving Commitment Increases, Other Revolving Credit Commitments, Initial
B-2-4 Dollar Term Commitments, Initial
B-3 Dollar Term Commitments, Initial B-4-5
Dollar Term Commitments, Incremental Term Commitments or Refinancing Term Commitments of a given Refinancing Series and (c) when
used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are New
Revolving Credit Loans, Revolving Credit Loans under Revolving Commitment Increases,
Revolving Credit Loans under Extended Revolving Credit Commitments of a given Extension Series, Revolving Credit Loans under Other Revolving
Credit Commitments, Initial B-2-4 Dollar
Term Loans, Initial B-3-5 Dollar Term
Loans, Initial B-4 Dollar Term LoansCommitments, Incremental
Term Loans, Refinancing Term Loans of a given Refinancing Series or Extended Term Loans of a given Extension Series.
New, Revolving Credit Commitments, Incremental Revolving Credit Commitments,
Extended Revolving Credit Commitments, Other Revolving Credit Commitments, Initial B-2-4
Dollar Term Commitments, Initial B-3-5
Dollar Term Commitments, Initial B-4 Dollar Term Commitments, Incremental
Term Commitments or Refinancing Term Commitments (and in each case, the Loans made pursuant to such Commitments) that have different
terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments)
that have the same terms and conditions shall be construed to be in the same Class. There shall be no more than an aggregate of three
Classes of revolving credit facilities and fivesix
Classes of term loan facilities under this Agreement at any time outstanding under this Agreement.
“Closing Date”
means July 3, 2014, the first date on which all conditions precedent in Section 4.01 are satisfied or waived in accordance
with Section 4.01.
“Closing Fees”
means those fees required to be paid on the Closing Date pursuant to the Fee Letter.
“Co-Borrower”
means each Subsidiary Guarantor that becomes a party hereto as a co-borrower pursuant to Section 10.25. For
the avoidance of doubt, each Co-Borrower shall remain a Subsidiary Guarantor and a Guarantor for
purposes of the Loan Documents, after it becomes a party hereto as a co-borrower provided
that, solely for purposes of Article XI, a Co-Borrower will not be a Guarantor of its own primary
obligations.
“Co-Manager”
means Blackstone Holdings Finance Co. L.L.C.
“Code” means
the U.S. Internal Revenue Code of 1986, as amended from time to time.
“COLI Loans”
means those certain loans borrowed from time to time by The Gates Corporation against group life insurance policies from Mass Mutual
(or any successor thereto) and the associated group life insurance policies.
“Collateral”
means (i) the “Collateral” as defined in the Security Agreement, (ii) all the “Collateral” or “Pledged
Assets” (or similar term) as defined in any other Collateral Document, (iii) Mortgaged Property and (iv) any other assets
pledged or in which a Lien is granted, in each case, pursuant to any Collateral Document; that, for the
avoidance of doubt, “Collateral” shall not include any Excluded Assets.
“Collateral Agent”
means Credit SuisseUBS AG, Cayman
IslandsStamford Branch, in its capacity as collateral agent or pledgee in
its own name under any of the Loan Documents, or any successor collateral agent.
“Collateral and Guarantee
Requirement” means, at any time, the requirement that:
(a) the
Administrative Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01(a)
or from time to time pursuant to Section 6.11, Section 6.13 or Section 6.16the
Security Agreement, subject to the limitations and exceptions of this Agreement, duly executed by each Loan Party party thereto;
(b) the
Obligations shall have been guaranteed by Holdings and each Subsidiary of the Borrower (other than the
Excluded Subsidiaries) pursuant to the Guaranty;
(c) subject
to any applicable Intercreditor Agreement, the Obligations and the Guaranty shall have been secured pursuant to the Security
Agreement by a first-priority perfected security interest with
the priority required by the Collateral Documents and any applicable Intercreditor Agreement in (i) all the Equity Interests
of the Borrower and (ii) all Equity Interests of each Restricted Subsidiary (that is not an Excluded Subsidiary (other than any
Restricted Subsidiary that is an Excluded Subsidiary solely pursuant to clause (f) or (j)(y) of
the definition thereof)) directly owned by any Loan Party, subject to exceptions and limitations otherwise set forth in this Agreement
and the Collateral Documents (to the extent appropriate in the applicable jurisdiction) (and the Administrative Agent shall have,
subject to the exceptions described in the Security Agreement, received certificates or other instruments representing all
such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in
blank);
(d) all
Pledged Debt owing to any Loan Party that is evidenced by a promissory note shall have been delivered to the Administrative Agent pursuant
to the Security Agreement and the Administrative Agent shall have received all such promissory notes, together with undated instruments
of transfer with respect thereto endorsed in blank;
(e) the
Obligations and the Guaranty shall have been secured by a perfected security interest in, and Mortgages on, substantially all now owned
or, in the case of real property, fee owned, or at any time hereafter acquired tangible and intangible assets of each Loan Party (including
Equity Interests, intercompany debt, accounts, inventory, equipment, investment property, contract rights, intellectual property, other
general intangibles, Material Real Property and proceeds of the foregoing), in each case, subject to exceptions and limitations otherwise
set forth in this Agreement and the Collateral Documents (to the extent appropriate in the applicable jurisdiction), in each case with
the priority required by the Collateral Documents and any applicable Intercreditor Agreement;
(f) subject
to limitations and exceptions of this Agreement and the Collateral Documents, to the extent a security interest in and Mortgages on any
Material Real Property are required pursuant to clause (ce)
above or under Sections 6.11, or
6.13 or 6.16 (each, a “Mortgaged Property”), the Administrative
Agent shall have received (i) counterparts of a Mortgage with respect to such Mortgaged Property duly executed and delivered by
the record owner of such property, together with evidence such Mortgage has been duly executed, acknowledged and delivered by a duly
authorized officer of each party thereto, in form suitable for filing or recording in all filing or recording offices that the Administrative
Agent may reasonably deem necessary or desirable in order to create a valid and subsisting perfected Lien (subject only to Liens described
in clause (ii) below) on the property and/or rights described therein in favor of the Collateral Agent for the benefit of the
Secured Parties, and evidence that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably
satisfactory to the Administrative Agent (it being understood that if a mortgage tax or similar charge
will be owed on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be limited
to 100% of the fair market value of the property covered by such Mortgage (as reasonably determined by
the Borrower) at the time the Mortgage is entered into if such limitation results in such mortgage tax or
similar charge being calculated based upon such fair market value), (ii) a fully
paid American Land Title Association Lender’s policiesy
of title insurance (or a marked-up title insurance commitments
having the effect of a policiesy
of title insurance) on thesuch
Mortgaged Property naming the Collateral Agent as the insured for its benefit and that of the Secured Parties and their respective successors
and assigns (each, a “Mortgage Policy”, and collectively, the “Mortgage
Policies”) issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent in form
and substance and in an amount reasonably acceptable to the Collateral Agent (not to exceed 100% of the fair market value of the real
propertiesy covered thereby),
insuring thesuch Mortgages
to be valid subsisting first priority Liens on the property described
therein, free and clear of all Liens other than Liens permitted pursuant to Section 7.01 or Liens otherwise consented to
by the Collateral Agent, each of which shall (A) to the extent reasonably necessary, include such coinsurance and reinsurance arrangements
(with provisions for direct access, if reasonably necessary) as shall be reasonably acceptable to the Collateral Agent, (B) contain
a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against
losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), and (C) have been
supplemented by such endorsements as shall be reasonably requested by the Collateral Agent, to the extent such endorsements are available
in the applicable jurisdiction at commercially reasonable rates, (iii) opinions from local counsel in each jurisdiction (A) where
a Mortgaged Property is located regarding the enforceability of the Mortgage and (B) where the applicable Loan Party granting the
Mortgage on said Mortgaged Property is organized, regarding the due authorization, execution and delivery of such Mortgage, and in each
case, such other matters as may be in form and substance reasonably satisfactory to the Collateral Agent, (iv) a completed “life
of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together
with a notice about special flood hazard area status and flood disaster assistance), duly executed and acknowledged by the appropriate
Loan Parties, together with evidence of flood insurance, to the extent required under Section 6.07(c) hereof and (v) a
new ALTA/NSPS or such existing surveys together with no change affidavits sufficient for the
title company to remove all standard survey exceptions from the Mortgage Policies and issue the endorsements required in clause (ii) above;
(g) except
as otherwise contemplated by this Agreement or any Collateral Document, all certificates, agreements, documents and instruments, including
Uniform Commercial Code financing statements and Intellectual Property Security Agreements for filings
with the United States Patent and Trademark Office and United States Copyright Office,
as applicable, required by the Collateral Documents, applicable Law or reasonably requested by the Administrative Agent to
be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens
to the extent required by, and with the priority required by, the Collateral Documents, any applicable
Intercreditor Agreement and the other provisions of the term “Collateral and Guarantee Requirement,” shall have
been filed, registered or recorded or delivered to the Administrative Agent for filing, registration or recording; and
(h) after
the Closing Date, each Restricted Subsidiary of the Borrower that is not then a Guarantor and not an Excluded Subsidiary shall become
a Guarantor and signatory to this Agreement pursuant to a joinder agreement in accordance with Sections 6.11 or 6.13
and a party to the Collateral Documents in accordance with Section 6.11; provided that notwithstanding the foregoing
provisions, any Restricted Subsidiary of the Borrower that Guarantees (other than Guarantees
by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary) the Senior Notes, the ABL Credit
Agreement (other than Canadian Subsidiaries which guarantee Indebtedness under the ABL Credit Agreement) or any Junior
Financing with a principal amount in excess of the Threshold Amount or any Permitted Refinancing of any of the foregoing shall be a Guarantor
hereunder for so long as it Guarantees such Indebtedness.
Notwithstanding the foregoing
provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(A) the
foregoing definition shall not require, unless otherwise stated in this clause (A) and other
than pursuant to the floating charge granted by Holdings under the UK Security Agreement, the creation or perfection of pledges
of, security interests in, Mortgages on, or the obtaining of title insurance or taking other actions with respect to the following (collectively,
“Excluded Assets”): (i) any property or assets owned by any Foreign Subsidiary or anany
Unrestricted Subsidiary, (ii) any lease, license, contract, agreement or other general intangible or any property
subject to a purchase money security interest, CapitalizedFinancing
Lease Obligation or similar arrangement, in each case permitted under this Agreement, to the extent that a grant of a security
interest therein would violate or invalidate such lease, license, contract, agreement or other general intangible, CapitalizedFinancing
Lease Obligations or purchase money arrangement or create a right of termination in favor of any other party thereto (other
than a Loan Party) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable
Law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial
Code or other applicable Law notwithstanding such prohibition, (iii) any interest in fee-owned real property (other than Material
Real Properties), (iv) any interest in leased real property (including any requirement to deliver landlord waivers, estoppels and
collateral access letters), (v) motor vehicles and other assets subject to certificates of title except to the extent perfection
of a security interest therein may be accomplished by filing of financing statements in appropriate form in the applicable jurisdiction
under the Uniform Commercial Code, (vi) Margin Stock and Equity Interests of any Person other than wholly-ownedwholly
owned Subsidiaries that are Restricted Subsidiaries (that is not an Excluded Subsidiary (other than any Restricted Subsidiary
that is an Excluded Subsidiary solely pursuant to clause (f) or (j)(y) of the
definition thereof)), (vii) any trademark application filed in the United States Patent and Trademark Office on the basis of the
Borrower’s or any Guarantor’s “intent to use” such mark and for which a form evidencing use of the mark has not
yet been filed with the United States Patent and Trademark Office, to the extent that granting a security interest in such trademark
application prior to such filing would impair the enforceability or validity of such trademark application or any registration that issues
therefrom under applicable federal Law, (viii) the creation or perfection of pledges of, or security interests in, any property
or assets that would result in material adverse tax consequences to Holdings, the Borrower, or any of itsthe
Subsidiaries, as reasonably determined by the Borrower in consultation with the Administrative Agent, (ix) any governmental
licenses or state or local franchises, charters and authorizations, to the extent a security in any such license, franchise, charter
or authorization is prohibited or restricted thereby after giving effect to the anti-assignment provision of the Uniform Commercial Code
and other (1) applicable Law, other than proceeds and receivables thereof, the assignment
of which is expressly deemed effective under the Uniform Commercial Code or other applicable Law notwithstanding such prohibition or
restriction, (x) pledges and security interests prohibited or restricted by applicable Law (including any requirement to obtain
the consent of any governmental authority or third party (other than a Loan Party)) or (2) any contract
binding on a Loan Party or that would require any consent, approval, license or other authorization of any third party (other than any
Loan Party) or governmental or regulatory authority pursuant to such a contract (provided that such prohibition or requirement described
in this clause (2) either (A) existed on or prior to the Closing Date or at the time of the acquisition of such asset by the
Borrower or any Restricted Subsidiary, as applicable, and was not incurred in contemplation thereof or (B) is of a similar type
of arrangement as those existing on such date that is entered into in the ordinary course of business or is consistent with past practice
of the applicable Loan Party), in each case, after giving effect to the anti-assignment provision of the Uniform Commercial Code or other
applicable Law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform
Commercial Code or other applicable Law notwithstanding such prohibition or restriction, (xi) all commercial tort claims
in an amount less than $10.0 million, (xii) [reserved], (xiii) letter
of credit rights, except to the extent constituting a supporting obligation for other Collateral as to which perfection of the security
interest in such other Collateral is accomplished by the filing of a Uniform Commercial Code financing statement (it being understood
that no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a Uniform Commercial
Code financing statement), (xiv) cash and Cash Equivalents (other than cash and Cash Equivalents representing proceeds of Collateral,
it being understood that all proceeds of Collateral shall be Collateral), (xv) any particular assets if the burden, cost or consequence
of creating or perfecting such pledges or security interests in such assets is excessive in relation to the benefits to be obtained therefrom
by the Lenders under the Loan Documents as mutually agreed by the Borrower and the Administrative Agent and communicated in writing delivered
to the Collateral Agent and, (xvi) voting
Equity Interests in any Foreign Subsidiary, CFC or any FSHCO, in each case, representing more than 65% of the voting power of all outstanding
Equity Interests of such Foreign Subsidiary, CFC or FSHCO and (xvii) proceeds from any and all of the foregoing assets
described in clauses (i) through (xvi) above to the extent such proceeds would otherwise
be excluded pursuant to clauses (i) through (xvi) above;
(B) (i) the
foregoing definition shall not require control agreements with respect to any cash, deposit accounts or securities accounts or any other
assets requiring perfection through control agreements; (ii) other than in respect of Holdings under
the UK Security Agreement, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall
be required in order to create any security interests in assets located or titled outside of the U.S., including any IP
Rights and other intellectual property registered in any non-U.S. jurisdiction, or to perfect such security interests (it
being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction)
and (iii) other than in respect of Holdings under the UK Security Agreement or except
to the extent that perfection and priority may be achieved by the filing of a financing statement under the Uniform Commercial Code with
respect to the Borrower or a Guarantor, the Loan Documents shall not contain any requirements as to perfection or priority with respect
to any assets or property described in clauses (i) or (ii) of this clause (B);
(C) the
Administrative Agent in its discretion may grant extensions of time for the creation or perfection of security interests in, and Mortgages
on, or obtaining of title insurance or surveys or taking other actions with respect to, particular
assets (including extensions beyond the Closing Date) where it reasonably determines, in consultation with the Borrower and communicated
in writing delivered to the Collateral Agent, that the creation or perfection of security interests and Mortgages on, or obtaining of
title insurance or surveys or taking other actions, or any other compliance with the requirements
of this definition cannot be accomplished without undue delay, burden or expense by the time or times at which it would otherwise be
required by this Agreement or the Collateral Documents; provided that the Collateral Agent shall have received on or prior to
the Closing Date (i) Uniform Commercial Code financing statements in appropriate form for filing under the Uniform Commercial Code
in the jurisdiction of incorporation or organization of each Loan Party, and
(ii) filings with the United States Copyright Office and the United States Patent and
Trademark Office and (iii) any certificates or instruments representing or evidencing Equity Interests of
the Borrower and its Domestic Subsidiaries (other than any Equity Interests constituting Excluded
SubsidiaryAssets) accompanied by instruments
of transfer and stock powers undated and endorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative
Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or
its counsel); provided further that the Collateral Agent shall have received the items set forth on
Schedule 6.16 on or prior to the date(s) set
forth therein; and
(D) in
the event that, at the option of the Borrower (subject to clause (iii) of the definition of “Guarantor”), a Foreign
Subsidiary becomes a Guarantor such Loan Party shall grant a perfected lien on substantially all of its assets pursuant to arrangements
reasonably agreed between the Administrative Agent and the Borrower, pursuant to documentation and subject to customary limitations in
such jurisdiction as may be reasonably agreed between the Administrative Agent and the Borrower, and nothing in the definition of “Excluded
Asset” or other limitation in this Agreement shall in any way limit or restrict the pledge of assets and property by any such Foreign
Subsidiary that is a Guarantor or the pledge of the Equity Interests of such Foreign Subsidiary by any other Loan Party that holds such
Equity Interests; and
(DE) Liens
required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations
(if any) set forth in this Agreement and the Collateral Documents.
“Collateral Documents”
means, collectively, the Security Agreement, the UK Security Agreement, the Intellectual Property
Security Agreements, each of the Mortgages, if any, collateral assignments, security agreements,
pledge agreements, intellectual property security agreements or other similar agreements delivered to the Administrative Agent or the
Collateral Agent pursuant to Section 4.01, Section 6.11, or
Section 6.13 or Section 6.16 and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent or the Collateral Agent for the
benefit of the Secured Parties.
“Commitment”
means a New Revolving Credit Commitment, Incremental Revolving Credit Commitment,
Extended Revolving Credit Commitment of a given Extension Series, Other Revolving Credit Commitment of a given Refinancing Series, Initial
B-3 Dollar Term Commitment, Initial B-4 Dollar Term Commitment, Initial
B-5 Dollar Term Commitments, Incremental Term Commitment or Refinancing Term Commitment of a given Refinancing Series as
the context may require.
“Commitment
Fee Rate” means with respect to the unused Revolving Credit Commitments, (x) if the Consolidated First Lien Net
Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) is
greater than 1.00 to 1.00, a percentage per annum equal to 0.375% and (y) if the Consolidated First Lien Net Leverage Ratio as set
forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) is less than
or equal to 1.00 to 1.00, a percentage per annum equal to 0.25%.
Any increase
or decrease in the Commitment Fee Rate resulting from a change in the Consolidated First Lien Net Leverage Ratio shall become effective
as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided
that at the option of the Required Revolving Credit Lenders, the highest Commitment Fee Rate (e.g., 0.375%) shall apply as of the first
Business Day after the date on which a Compliance Certificate was required to have been delivered but was not delivered, and shall continue
to so apply to and including the date on which such Compliance Certificate is so delivered (and thereafter the Commitment Fee Rate otherwise
determined in accordance with this definition shall apply).
“Committed Loan Notice”
means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of RFR
Loans or Term SOFR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.
or such other form as may be approved by the Administrative Agent (including any form
on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed
and signed by a Responsible Officer of the Borrower.
“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. §§ 1 et seq.).
“Company”
means Pinafore Holdings B.V.
“Company Parties”
means the collective reference to Holdings and its Restricted Subsidiaries, including the Borrower, and “Company Party”
means any one of them.
“Compensation Period”
has the meaning set forth in Section 2.12(c)(ii).
“Compliance Certificate”
means a certificate substantially in the form of Exhibit E-1.
“Consolidated EBITDA”
means, for any period, the Consolidated Net Income for such period:
(1) increased
(without duplication) by the following, in each case (other than with respect to clauses (f), (h) and,
(k) and (m) and the applicable pro forma adjustments in clause (o)) to
the extent deducted (and not added back) in determining Consolidated Net Income for such period:
(a) (x) provision
for taxes based on income, profits or capital gains of the
Borrower and the Restricted Subsidiaries, including, without limitation, federal, state, municipal,
foreign, franchise and similar taxes and foreignsales
taxes (such as the Delaware franchise tax, the Pennsylvania capital tax, Texas margin tax and provincial capital taxes paid in Canada)
and withholding taxes (including any future taxes or other levies which replace or are intended to be in lieu of such taxes
and any penalties and interest related to such taxes or arising from tax examinations), (y) if the Borrower is treated as a disregarded
entity or partnership for U.S. federal, state and/or local income tax purposes for such period or any portion thereof, the amount of
distributions actually made to any direct or indirect parent company of the Borrower in respect of such period in accordance with Section 7.06(i) and
(z) the net tax expense associated with any adjustments made pursuant to clauses (1) through (1622) of
the definition of “Consolidated Net Income”; plus
(b) Fixed
Charges for such period (including (w) non-cash rent expense, (x) net losses or
any obligations on Swap Obligations or other derivative instruments entered into for the
purpose of hedging interest rate risk, (y) bank fees, letter of credit fees
and other financing fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from Consolidated
Interest Expense as set forth in clauses (1)(ro) through
(z) in the definition thereof); plus
(c) with
respect to the Borrower for such period, the total amount of depreciation
and amortization expenses and capitalized fees related to any,
including, without limitation, the amortization of capitalized fees related to any Qualified Securitization Facility and the amortization
of intangible assets, content databases, internal labor costs, deferred financing costs, debt issuance costs, commissions, fee and expenses,
and any Capitalized Software Expenditures of the BorrowerHoldings
and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP;
plus
(d) the
amount of any restructuring charges or reserves, equity-based or non-cash compensation charges or expenses including any such charges
or expenses arising from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, retention charges
(including charges or expenses in respect of incentive plans), start-up or initial costs for any project or new production line, division
or new line of business or other business optimization expenses or reserves including, without limitation, costs or reserves associated
with improvements to IT and accounting functions, integration and facilities opening costs or any one-time costs incurred in connection
with acquisitions and investments and costs related to the closure and/or consolidation of facilities; plus
(e) any
other non-cash charges, expenses or losses, including non-cash
losses on the sale of assets, impairments and any write-offs or write-downs reducing Consolidated Net Income for such period
and any non-cash expense relating to the vesting of warrants (provided that if any
such non-cash charges represent an accrual or reserve for potential cash items in any future period, (A) the
BorrowerHoldings may elect not to add back such non-cash charge in the current
period and (B) to the extent the BorrowerHoldings
elects to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from
Consolidated EBITDA to such extent), and excluding amortization of a prepaid cash item that
was paid in a prior period); plus
(f) the
amount of any non-controlling interest or minority interest expense consisting of Subsidiary incomeor
any expense or deduction attributable to non-controlling or minority equity interests
of third parties in any non-wholly owned Subsidiary; plus
(g) the
amount of (x) board fees, management, monitoring, consulting, transaction,
advisory fees and other fees (including termination fees) and indemnities,
costs and expenses paid or accrued in such period under the Investor Management Agreement
(and related agreements or arrangements) or otherwise to the Investors to the extent otherwise permitted under Section 7.08to
the Permitted Holders or otherwise to any member of the board of directors (or similar body) of Holdings, the Borrower, any Subsidiary
of the Borrower or any direct or indirect parent of the Borrower, any Permitted Holder or any Affiliate of a Permitted Holder, (y) payments
made to option holders of the Borrower or any of its direct or indirect parent companies in connection with, or as a result of, any distribution
being made to shareholders of such person or its direct or indirect parent companies, which payments are being made to compensate such
option holders as though they were shareholders at the time of, and entitled to share in, such distribution, including any cash consideration
for any repurchase of equity, in each case to the extent permitted in the Loan Documents and (z) any fees and other compensation
paid to the members of the board of directors (or the equivalent thereof) of the Borrower or any of its parent entities; plus
(h) the
amount of (x) pro forma adjustments, including pro forma “run rate” cost
savings (including sourcing), operating expense reductions and,
operating improvements (including the entry into new or revised contracts and arrangements) and cost synergies, product margin and other
synergies related to the Transactions mergers,
amalgamations and other business combinations, acquisitions, investments, dispositions, divestitures, restructurings, operating improvements
and expense reductions, cost savings initiatives, new or revised contracts, discontinued operations, operational changes, business expansions,
Permitted Tax Restructuring and other similar transactions or initiatives (including the modification and renegotiation of contracts
and other arrangements and the entry into new contracts and arrangements) and including Consolidated EBITDA pursuant to contracted pricing
(at the highest contracted rate) that are reasonably identifiable and factually supportable
and projected by the BorrowerHoldings
in good faith to result from or relating to actions that have been taken or initiated,
or have been committed to be taken or initiated, with respect to which substantial steps have been taken or initiated
(in each case, including from any steps or actions taken or initiated in whole or in part prior to the applicable consummation date of
such transaction, initiative or event) or are expected to be taken (in the good faithor
initiated (in the good-faith determination of the BorrowerHoldings)
within 36 months after the Closing Dateany such transaction,
initiative, contract or event is consummated or entered into, net the amount of actual benefits realized during such period
from such actions, and (y) “run rate” cost savings, operating expense reductions and
synergies related to mergers and other business combinations, acquisitions, divestitures,
restructurings, cost savings initiatives and other similar initiatives consummated after the Closing Date that are reasonably identifiable
and factually supportable 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 the Borrower) within 24 months after a merger or other business combination,
acquisition, divestiture, restructuring, cost savings initiative or other initiative is consummated, net the amount of actual benefits
realized during such period from such actions, in each case, calculated on a pPro
fForma bBasis
as though such cost savings, operating improvements and expense reductions and
synergies, product margin and other synergies and Consolidated EBITDA improvements based
on contracted pricing (at the highest contracted rate) and similar arrangements had been realized on the first day of such
period for which Consolidated EBITDA is being determined and as if such cost savings, operating improvements
and expense reductions, product margin and other
synergies and Consolidated EBITDA were realized duringon
the first day of the applicable period for the entirety of such period; provided that no cost
savings, operating improvements and expense reductions, product margin and other synergies and Consolidated EBITDA shall be added pursuant
to this clause (h) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through
a pro forma adjustment or otherwise, for such period; provided that any adjustments made pursuant to this clause (h) shall not include
any revenue adjustments, including, for the avoidance of doubt, any revenue adjustments relating to new contracts and arrangements and
product margin; plus
(i) [reserved];
plus
(i) (A) the
amount of any fee, loss, charge, expense, cost, accrual or reserve of any kind incurred or accrued in connection with sales of receivables
and related assets in connection with any Qualified Securitization Facility and (B) Securitization Fees and the amount of loss on
sale of receivables and related assets to the Securitization Subsidiary in connection with a Securitization Facility; plus
(j) any
costs or expense incurred by the BorrowerHoldings
or a Restricted Subsidiary or a direct or indirect parent entity of the Borrower to the extent paid by
Holdings or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or
employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder
agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the
capital of the Borrower or net cash proceeds of an issuance of Equity Interest of the Borrower (other than Disqualified Equity Interest)
solely to the extent that such cash proceeds or net cash proceeds are excluded from the calculation of Cumulative Credit;
plus
(k) cash
receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net
Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant
to clause (2) below for any previous period and not added back; plus
(l) any net
losses, charges, expenses, costs or other payments (including all fees, expenses or charges related thereto)
(i) from disposed, abandoned or discontinued operations;,
(ii) in respect of facilities no longer used or useful in the conduct of the business of Holdings or its Restricted Subsidiaries,
abandoned, closed, disposed or discontinued operations and any losses on disposal of abandoned, closed or discontinued operations and
(iii) attributable to business dispositions or asset dispositions (other than in the ordinary course of business) as determined
in good faith by Holdings; plus
(m) at
the option of Holdings with respect to any quarterly period, an amount equal to the net change in deferred revenue at the end of such
period from the deferred revenue at the end of the previous period; plus
(n) (i) compensation
expense attributable to positive investment income with respect to funded deferred compensation account balances and (ii) any non-cash
long-term incentive payments relating to compensation arrangements or non-cash accruals related to long-term incentive plans; plus
(o) any
other adjustments, exclusions and add-backs of the type (but not including, for the avoidance of doubt, any deductions) reflected in
any quality of earnings analysis prepared by independent registered public accountants of recognized national or international standing
or any other accounting or valuation firm reasonably acceptable to the Administrative Agent and delivered to the Administrative Agent
in connection with any Permitted Acquisition or other permitted Investment; plus
(p) the
amount of any gains or losses arising from embedded derivatives in the customer contracts of Holdings or a Restricted Subsidiary and
any gain or loss attributable to mark-to-market adjustments in the valuation of pension liabilities, including actuarial gain or loss
on pension and post-retirement plans, curtailments and settlements; plus
(q) charges,
expenses or losses incurred in connection with any Permitted Tax Restructuring; plus
(r) charges
relating to the sale of products in new locations, including start-up costs, initial testing and registration costs in new markets, the
cost of feasibility studies, travel costs for employees engaged in activities relating to any or all of the foregoing and the allocation
of general and administrative support in connection with any or all of the foregoing; plus
(s) 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, 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, employees’, consultants’, 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 and other executive costs, legal and other professional fees and listing fees;
(2) decreased
(without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(a) non-cash
gains increasing Consolidated Net Income of the BorrowerHoldings
for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential
cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior
period so long as such cash did not increase Consolidated EBITDA in such prior period; plus
(b) any
net income from disposed, abandoned or discontinued operations.
There shall be included in determining Consolidated
EBITDA for any period, without duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by the
BorrowerHoldings or any Restricted Subsidiary during such period (but not
the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently
sold, transferred or otherwise disposed by the BorrowerHoldings
or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently
so disposed of, an “Acquired Entity or Business”) and the Acquired EBITDA of any Unrestricted Subsidiary that is converted
into a Restricted Subsidiary during such period (each, a “Converted Restricted Subsidiary”), based on the actual Acquired
EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring
prior to such acquisition) and (B) for the purposes of the definition of the term “Permitted
Acquisition,” compliance with the covenant set forth in Section 7.11 and the calculation of the Consolidated
First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio and,
the Consolidated Total Net Leverage Ratio and the Consolidated Interest Coverage Ratio,
an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired
Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate
executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. There shall be excluded in determining Consolidated
EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred
or otherwise disposed of or, closed or classified as discontinued operations (but if such operations are classified as discontinued due
to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually
disposed of) by the BorrowerHoldings or any
Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity
or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during
such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity
or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer
or disposition).
Notwithstanding
anything to the contrary contained herein, for purposes of determining Consolidated
EBITDA under this Agreement for any period that includes any of the fiscal quarters ended June 30, 2013, September 30, 2013,
December 31, 2013 and March 31, 2014, Consolidated EBITDA for such fiscal quarters shall be $158.8 million, $149.2 million,
$142.1 million and $149.5 million, respectively, in each case, as may be subject to any adjustment set forth in the immediately
preceding paragraph for the applicable Test Period with respect to any acquisitions, dispositions or conversions occurring after the
Closing Date.
“Consolidated First
Lien Net Debt” means Consolidated Total Net Debt, minus,
without duplication, the sum of (i) the portion of Indebtedness of the BorrowerHoldings
or any Restricted Subsidiary included in Consolidated Total Net Debt that is not secured,
in whole or in part, by any Lien on property or assets of the BorrowerHoldings
or any Restricted Subsidiary and (ii) the portion of Indebtedness of the BorrowerHoldings
or any Restricted Subsidiary included in Consolidated Total Net Debt that is secured by Liens
on property or assets of the Borrower or any Restricted Subsidiary, which
Liens are expressly subordinated orin
right of payment to, or that is secured on a junior lien basis to the Liens securing,
the Obligations pursuant to the Junior Lien Intercreditor Agreement.
For the avoidance of doubt, ABL Debt will be deemed to be Consolidated First Lien Net Debt.
“Consolidated First
Lien Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated First Lien Net Debt as
of the last day of such Test Pperiod to (b) Consolidated
EBITDA of the BorrowerHoldings and its Restricted
Subsidiaries for such Test Pperiod.
“Consolidated
Interest Coverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated EBITDA of Holdings and
its Restricted Subsidiaries for such period to (b) Consolidated Interest Expense for Holdings and its Restricted Subsidiaries for
such period.
“Consolidated Interest
Expense” means, for any period, the sum, without duplication, of:
(1) consolidated
cash interest expense of the BorrowerHoldings
and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing
Consolidated Net Income (including (a) amortization of original issue discountOID
resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges
owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but
excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Swap Obligations or other derivative
instruments pursuant to GAAP)[reserved], (d) the interest component of
CapitalizedFinancing Lease Obligations, and
(e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Swap Obligations with respect to
Indebtedness, and excluding (rn) annual agency or similar
fees paid to the administrative agents, collateral agents and other agents under this Agreement or other credit facilities, (o) any
additional interest with respect to failure to comply with any registration rights agreement owing with respect to the Senior Notes or
other securities, (sp) costs associated with
obtaining Swap Obligations, (tq) any expense
resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable,
purchase or acquisition accounting in connection with the Transactions or any acquisition
or other transaction, (ur)
penalties and interest relating to taxes, (vs)
any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply
with registration rights obligations, (wt)
amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees and,
expenses and discounted liabilities and any other amounts of non-cash interest,
(xu) any expensing of bridge, commitment
and other financing fees and any other fees related to the Transactions or,
any acquisitions after the Closing Date, (y or
other transaction, (v) Securitization Fees, commissions, discounts, yield, make-whole premiums and other fees and charges (including
any interest expense) incurred in connection with any Qualified Securitization Facility, (w) any accretion of accrued
interest on discounted liabilities and any prepayment premium or penalty,
make-whole or breakage premium, cost or penalty, (x) interest expense attributable to a parent entity resulting from push-down accounting,
(y) any lease, rental or other expense in connection with a Non-Financing Lease Obligation and (z) the interest
component associated with COLI Loans); plus
(2) consolidated
capitalizedcash interest of the
BorrowerHoldings and its Restricted Subsidiaries for such period, whether
paid or accrued (but excluding any pay in kind interest); less
(3) interest
income of the BorrowerHoldings and its Restricted
Subsidiaries for such period.
For purposes of this definition,
interest on a CapitalizedFinancing Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined by the BorrowerHoldings
to be the rate of interest implicit in such CapitalizedFinancing
Lease Obligation in accordance with GAAP (or, if not implicit, as otherwise determined in
accordance with GAAP).
“Consolidated Net
Income” means, for any period, the net income (loss) of the BorrowerHoldings
and the Restricted Subsidiaries for such period determined on a consolidated basis, and otherwise
determined in accordance with GAAP; provided, however, that, without duplication,
(1) any
after-tax effect of extraordinary, non-recurring orexceptional,
one-time, infrequent, non-operating, unusual or nonrecurring gains or,
losses (lessor expenses (including
all fees and expenses relating thereto) (including any extraordinary, exceptional, one-time, infrequent,
non-operating, unusual or nonrecurring operating expenses directly attributable to the implementation of cost savings initiatives and
any accruals or reserves in respect of any extraordinary, exceptional, infrequent, unusual or nonrecurring items, charges
or expenses (including relating to any multi-year strategic initiatives)), costs associated with preparations
for, and implementation of, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and other Public Company Costs,
Transaction Expenses, restructuring and duplicative running costs, restructuring charges or reserves
(including any restructuring charge related to any Permitted Tax Restructuring), earn-out payments or other consideration paid or payable
in connection with an acquisition to the extent recorded as cash compensation expense, relocation costs, start-up
or initial costs for any project or new production line, division or new line of business, integration and
facilities opening costs, facility consolidation and closing costs, severance costs and expenses, one-time charges
(including compensation charges, costs),
payments made pursuant to the terms of change-in-control agreements that Holdings or a Restricted Subsidiary or a parent entity of Holdings
had entered into with employees of Holdings, any future, present or former employees, directors, officers, managers, members, partners,
independent contractors or consultants of Holdings, the Borrower, a Restricted Subsidiary or a direct or indirect parent entity of the
Borrower, pre-opening, opening, consolidation, discontinuation, re-configuration, integration, ramp-up costs, moving and closing costs
and expenses for locations, facilities and stores, losses, costs or cost inefficiencies relatinged
to pre-opening and opening costs for facilitiesy
or property disruptions or shutdowns, signing, retention and completion bonuses, costs incurred
in connection with any strategic initiatives, transitionrecruiting costs,
costs incurred in connection with acquisitions andany
strategic initiatives, transition costs, litigation and arbitration fees (whether or not recurring) and charges, fees and expenses (including
settlements), expenses in connection with one-time rate changes, costs incurred in connection with acquisitions, investments and/or dispositions,
travel and out-of-pocket costs, professional fees for legal, accounting and other services, human resources costs (including relocation
bonuses), litigation and arbitration costs (whether or not recurring), charges, fees and expenses (including related judgments and settlements),
management transition costs, advertising costs, losses associated with temporary decreases in business volume and expenses related to
maintaining underutilized personnel, non-recurring product and intellectual propertyIP
Rights development, other business optimization expenses or reserves (including
costs and expenses relating to business optimization programs and new systems design and costs or reserves
associated with improvements to IT and accounting functions, retention charges (including
charges or expenses in respect of incentive plans), system establishment costs and implementation costs) and operating expenses
attributable to the implementation of cost-savings initiatives or operating expense reductions, product
margin synergies and other synergies and similar initiatives and other expenses relating to the realization of synergies,
and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded;
(2) at
the election of Holdings with respect to any quarterly period, the cumulative after-tTax
effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during
such period shall be excluded;
(3) any
net after-tTax effect of gains or losses
on (i) disposal, abandonment or discontinuance of disposed, abandoned or discontinued
operations, as applicable, and any accretion or accrual of discontinued liabilities on the disposal of
such disposed, abandoned and discontinued operation and (ii) facilities or distribution centers that have been closed during such
period, shall be excluded;
(4) any
net after-tTax effect of gains or losses
(less all fees, expenses and charges relating thereto) attributable to (i) asset dispositions
(including, for the avoidance of doubt, dispositions
of books of business, client lists or related goodwill in connection with the departure of related employees or producers or
bulk subscriber contract sales) or abandonments or the sale or other disposition of any Equity Interests of any Person or
(ii) returned surplus assets of any pension plan, in each case other than in the ordinary course of business shall be
excluded;
(5) the
net income for such period of any Person that is not Holdings or a Subsidiary of the
BorrowerHoldings, or is an Unrestricted Subsidiary, or that is accounted for
by the equity method of accounting shall be excluded; provided that Consolidated Net Income of the BorrowerHoldings
shall be increased by the amount of dividends or distributions or other payments (other than
Excluded Contributions) that are actually paid in cash or Cash Equivalents (or
to the extent converted into cash) to the Borrower,
or having the ability to be converted, into cash or Cash Equivalents) to Holdings or a Restricted Subsidiary thereof in respect of such
period or that could, in the reasonable determination of Holdings, have been distributed to Holdings or a Restricted Subsidiary
thereof in respect of such period;
(6) solely
for the purposes of determining the amount
of the Cumulative Credit and Excess Cash Flow, the net income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of its net income is not at the date of determination permitted without any prior governmental
approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders (other
than restrictions in this Agreement), unless such restriction with respect to the payment of dividends or similar distributions has been
legally waived or released (or such Person reasonably believes such restriction could be waived or released
and is using commercially reasonable efforts to pursue such waiver or release); provided that the Consolidated Net
Income of the BorrowerHoldings and its Restricted
Subsidiaries will be increased by the amount of dividends or other distributions or other payments actually paid in cash
or Cash Equivalents (or to the extent converted, or having the ability to be converted,
into cash or Cash Equivalents) to the BorrowerHoldings
or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein;
(7) effects
of adjustments (including the effects of such adjustments pushed down to the BorrowerHoldings
and its Restricted Subsidiaries) in the Borrower’sHoldings’
consolidated financial statements pursuant to GAAP (including in the inventory (including any impact of changes to inventory
valuation policy methods, including changes in capitalization of variances), property and equipment, software, loans
and leases, goodwill, intangible assets, in-process research and development, deferred revenue and debt line items thereof)
resulting from the application of recapitalization accounting or purchase or acquisition accounting,
as the case may be, in relation to the Transactions or any consummated acquisition or joint venture investment or other
transaction or the amortization or write-off or write-down of any amounts thereof, net of taxes, shall be excluded;
(8) any
after-tTax effect of income (loss) from the
early extinguishment or conversion of (i) Indebtedness, (ii) Swap Obligations
or (iii) other derivative instruments shall be excluded;
(9) any
impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to goodwill,
intangible assets, long-lived assets, investments in debt and equity securities and investments recorded using the equity
method or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant
to GAAP shall be excluded;
(10) any
equity-based or non-cash compensation or similar charge or expense or
reduction of revenue including any such charge or,
expense or amount arising from grants of stock appreciation or similar rights,
stock options, restricted stock, profits interests or other rights or equity or equity-based incentive programs (“eEquity
iIncentives”),
any other management or employee benefit plan or agreement, pension plan or other long-term or post-employment plan, any one-time
cash charges associated with the eEquity
iIncentives or other long-term incentive
compensation plans (including under the Borrower’s deferred compensation arrangements),
roll-over of Holdings, the Borrower or any of its direct or indirect parent entities
or subsidiaries), rollover, acceleration, or payout of Equity Interests by management, otherfuture,
present or former employees, directors, officers, managers, members, partners, independent
contractors or consultants or business partners of Holdings, the Borrower or any
of its direct or indirect parent companiesentities or
subsidiaries, and any cash awards granted to future, present or former employees, directors, officers, managers, members, partners, independent
contractors or consultants or business partners of Holdings and its Subsidiaries or any of its direct or indirect parent entities in
replacement for forfeited equity awards, shall be excluded;
(11) any
fees, costs, expenses, premiums or charges incurred
during such period, or any amortization thereof for such period, in connection with any acquisition, recapitalization, investment, asset
sale, disposition, option buyout, incurrence or repayment of Indebtedness (including
such fees, expenses, premiums or charges related to the offering and issuance of the Senior
Notes and other securities and the syndication and incurrence of the ABL Credit Agreement and any
Facility (including such fees, expenses or charges relating to any rating of the Senior Notes, other
securities or any other Facility by the Rating Agencies), issuance of Equity Interests of
the Borrower or its direct or indirect parent entities, refinancing transaction or amendment or modification of any debt instrument
(including any amendment or other modification of the Senior Notes and other securities and the ABL
Credit Agreement and any Facility) and including, in each case, any such transaction consummated on or prior to the Closing
Date and any such transaction undertaken but not completed, and any charges or non-recurring merger costs incurred during such period
as a result of any such transaction, in each case whether or not successful or consummated (including, for the avoidance of doubt the
effects of expensing all transaction related expenses in accordance with Financial Accounting Standards Board Accounting Standards Codification
Topic No. 805, Business Combinations),
shall be excluded;
(12) accruals
and reserves that are established or adjusted within twelve months after the Closing Date that are so required to be established or adjusted
as a result of the Transactions (or within twelve months after the closing of any acquisition
that are so required to be established as a result of such acquisition) in accordance with GAAP or changes as a result of modifications
of accounting policies shall be excluded;
(13) any
expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as the
BorrowerHoldings has made a determination that there exists reasonable evidence
that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed
within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent
not so reimbursed within the applicable 365-day period), shall be excluded;
(14) any
non-cash compensation expense resulting from the application of Accounting Standards Codification Topic No. 718, Compensation—Stock
Compensation or any other applicable accounting principle relating to the expensing of equity-related
compensation, shall be excluded;
(15) any
net pension or post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including
amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at
the date of initial application of Statement of Financial Accounting Standards No. 87, 106 and 112; and any other items of a similar
nature, shall be excluded;
(16) income
or expense related to changes in the fair value of contingent liabilities recorded in connection with the Transactions or any acquisition
or other Investment shall be excluded;
(17) all
discounts, commissions, fees and other charges (including interest expense) associated with any Qualified Securitization Facility shall
be excluded;
(18) the
effects of adjustments to accruals and reserves during a period relating to any change in the methodology of calculating reserves for
returns, rebates and other chargebacks (including government program rebates) shall be excluded;
(19) any
accruals or obligations accrued related to workers’ compensation programs to the extent that expenses deducted in the calculation
of net income exceed the net amounts paid in cash related to workers’ compensation programs in that period;
(20) the
amount of any cash tax benefits related to the tax amortization of intangible assets in such period shall be included;
(1521) the
following items shall be excluded:
(a) any
net unrealized gain or loss (after any offset) resulting in such period from Swap Obligations
and the application of Accounting Standards Codification Topic No. 815, Derivatives and Hedging or
any other comparable applicable accounting standard,
(b) any
net unrealized gain or loss (after any offset) resulting in such period from currency
translation or transaction gains or losses including those related to currency remeasurements
of Indebtedness (including any net loss or gain resulting from Swap Obligations for currency exchange risk and
those resulting from intercompany Indebtedness) and any other foreign currency translation or
transactions gains and losses, to the extent such gain or losses are non-cash items,
(c) any
adjustments resulting for the application of Accounting Standards Codification Topic No. 460, Guarantees, or any comparable
accounting standard or regulation,
(d) at
the election of Holdings with respect to any quarterly period, effects of adjustments to accruals and reserves during a prior
period relating to any change in the methodology of calculating reserves for returns, rebates and other chargebacks, and
(e) earn-out,
non-compete and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments
thereof and purchase price or valuation adjustments;,
and
(f) the
impact of capitalized, accrued or accredited or pay in kind interest; and
(1622) if
such Person is treated as a disregarded entity or partnership for U.S. federal, state and/or local income tax purposes for such period
or any portion thereof, the amount of distributions actually made to any direct or indirect parent company of such Person in respect
of such period in accordance with Section 7.06(i)(iii) shall be included in calculating Consolidated Net Income as though
such amounts had been paid as taxes directly by such Person for such period.
In addition, to the extent
not already included in the Consolidated Net Income of the BorrowerHoldings
and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall
include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are
covered by indemnification or other reimbursement provisions in connection with any acquisition, investment or any sale, conveyance,
transfer or other disposition of assets permitted under this Agreement.
“Consolidated Secured
Net Debt” means Consolidated Total Net Debt, minus,
without duplication, the sum of (i) the portion of Indebtedness of the BorrowerHoldings
or any Restricted Subsidiary included in Consolidated Total Net Debt that is not secured,
in whole or in part, by any Liens on property or assets of
the Borrowerand (ii) the portion of Indebtedness of Holdings or any Restricted
Subsidiary included in Consolidated Total Net Debt that is subordinated in right of payment to the Obligations
(whether or not secured).
“Consolidated Secured
Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Secured Net Debt as of the last
day of such Test Pperiod to (b) Consolidated
EBITDA of the BorrowerHoldings and its Restricted
Subsidiaries for such Test Pperiod.
“Consolidated Total
Net Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of the
BorrowerHoldings and its Restricted Subsidiaries outstanding on such date,
in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but
excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the
Transactions or any Permitted Acquisition), consisting of Indebtedness for borrowed money, Attributable
(other than in respect of Section 7.11, the definition of “Applicable Rate”
and the definition of “Commitment Fee Rate”, discounted for any OID in connection with such Iindebtedness,)
and debt obligations evidenced by promissory notes, bonds, debentures, loan agreements
or similar instruments, minus the aggregate amount of all cash and Cash Equivalents on the balance sheet of the
BorrowerHoldings and its Restricted Subsidiaries as of such date; provided
that Consolidated Total Net Debt shall not include Indebtedness (i) in respect of letters of credit (including
Letters of Credit), except to the extent of unreimbursed amounts thereunder; provided,
further, that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total
Net Debt until three Business Days after such amount is drawn and (ii) of Unrestricted Subsidiaries; it being understood, for the
avoidance of doubt, that obligations under Swap Contracts or in respect of Non-Financing Lease Obligations
do not constitute Consolidated Total Net Debt.
“Consolidated Total
Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last
day of such Test Pperiod to (b) Consolidated
EBITDA of the BorrowerHoldings and its Restricted
Subsidiaries for such Test Pperiod.
“Consolidated Working
Capital” means, with respect to the BorrowerHoldings
and its Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination
minus Current Liabilities at such date of determination; provided that increases or decreases in Consolidated Working Capital
shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification
in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the effects of purchase accounting.
“Contract Consideration”
has the meaning set forth in the definition of “Excess Cash Flow.”Section 2.05(b)(i).
“Contractual Obligation”
means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
“Control”,
“Controlled” and “Controlling” have has the meanings set forth in the definition of “Affiliate”.
“Controlled
Investment Affiliate” means, as to any Person, any other Person, other than the Investors, which directly or indirectly is
in Control of, is Controlled by, or is under common Control with such Person and is organized by such Person (or any Person Controlling
such Person) primarily for making direct or indirect equity or debt investments in the Borrower and/or other companies.
“ControlConverted
Restricted Subsidiary” has the meaning set forth in the definition of “AffiliateConsolidated
EBITDA.”
“Converted
Unrestricted Subsidiary” has the meaning set forth in the definition of “Consolidated EBITDA.”
“Converting Initial
B-2-3 Dollar Term Lender” means
each Person that was an Initial B-2-3 Dollar
Term Lender immediately prior to the Amendment No. 49
Effective Date and provided the Administrative Agent with a counterpart to Amendment No. 49
executed by such Lender within the time period specified in Amendment No. 49;
provided that the Additional B-3-5 Dollar
Term Lender will be deemed to be a Converting Initial B-2-3
Dollar Term Lender with respect to its Post-Closing Settlement Term Loans (as defined in Amendment No. 49).
“Converted
Initial B-3 Dollar Term Loan” means each Initial B-2 Dollar Term Loan held by a Converting Initial B-2 Dollar Term Lender on
the Amendment No. 4 Effective Date immediately prior to the effectiveness of Amendment No. 4 (including,
for the avoidance of doubt, the Post-Closing Settlement Term Loans held by the Additional B-3 Dollar
Term Lender); provided that the amount of such Converting Initial B-2 Dollar Term Lender’s Converted Additional B-3 Dollar
Term Loan may be such lesser amount as provided in Amendment No. 4.
“Converted
Restricted SubsidiaryCovered Entity” has the meaning set
forth in the definition of “Consolidated EBITDA.”Section 10.25(b).
“Converted Unrestricted
Subsidiary” has the meaning set forth in the definition of “Consolidated EBITDA.”
“Covered
Party” has the meaning set forth in Section 10.2410.25(a).
“Credit Agreement
Refinancing Indebtedness” means (a) Permitted First Priority Refinancing Debt, (b) Permitted Junior Lien Refinancing
Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each
case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for,
or to extend, renew, replace, repurchase, retire or refinance, in whole or part, existing Term Loans and Revolving Credit Loans (or Commitments
in respect to Revolving Credit CommitmentsLoans),
or any then-existing Credit Agreement Refinancing Indebtedness (“Refinanced Debt”); provided that (i) subject
to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness has a maturity no earlier than,
and, in the case of Refinancing Term Loans, a Weighted Average Life to Maturity equal to or greater,
than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount
of the Refinanced Debt, plus accrued interest, fees, premiums (if any) and penalties
thereon and reasonable fees and expenses associated with the refinancing, (iii) the other terms
and conditions of such Indebtedness (except as otherwise provided in clause (ii) above and with
respect to pricing, premiums, fees, rate floors and optional prepayment or redemption terms) are substantially identical to, or (taken
as a whole) are no more favorable (as reasonably determined by the Borrower) to
the lenders or holders providing such Indebtedness, than those applicable to the Refinanced Debt being refinanced (except for covenants
or other provisions shall reflect terms and conditions that are otherwise as agreed between
the Borrower and the lender, holder or other provider of such Credit Agreement Refinancing Indebtedness (provided that to the
extent any more restrictive financial maintenance covenant is added for the benefit of such Credit Agreement Refinancing Indebtedness,
such financial maintenance covenant shall be added for the benefit of the Revolving Credit Facility that then benefits from such financial
maintenance covenant and is remaining outstanding (except to the extent such financial maintenance covenant is applicable
only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness and it
being understood that to the extent any financial maintenance covenant is added for the benefit of any Credit Agreement Refinancing Indebtedness,
no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant
is also added for the benefit of any corresponding existing Facility at the time of such refinancing) (provided that a
certificate of a Responsible Officer delivered to the Administrative Agent at least five
(5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed
description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating
that the Borrower has determined in good faith that such terms and conditions satisfy the requirement
of this clause (iii) shall be conclusive evidence that such terms
and conditions satisfy such requirement unless the Administrative Agent notifies the Borrower within such five (5) Business Day
period that it disagrees with such determination (including a description of the basis upon which it disagreesof
such Revolving Credit Facility)), and (iv) such Refinanced Debt shall
be repaid, repurchased, retired, defeased or satisfied and discharged, all accrued interest, fees, premiums (if any) and penalties in
connection therewith shall be paid, and all commitments thereunder terminated, on the date such Credit Agreement Refinancing Indebtedness
is issued, incurred or obtained.
“Credit Extension”
means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Cumulative Credit”
means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:
(a) the
greater of (x) $100,000,000 and (y) 1.50% of Total Assets; provided that no Event of
Default has occurred and is continuing or would result from
any action taken pursuant to this clause (a),300,000,000 and (y) 40% of LTM Consolidated
EBITDA; plus
(b) 50%
of Consolidated Net Income of Holdings and its Restricted Subsidiaries for the period from
the first day of the fiscal quarter of the BorrowerHoldings
during which the Closing Date occurred to and including the last day of the most recently ended fiscal quarter of the
Borrower or, in the case Consolidated Net Income for such period is a deficit, minus 100% of such deficit; provided that no Event
of Default has occurred and is continuing or would result from any action taken pursuant to this clause (b)Holdings
for which financial statements are internally available, which amount shall not be less than zero for any period, plus
(c) the
Cumulative Retained Asset Sale Proceeds Amount at such time, plus
(cd) the
cumulative amount of the cash and Cash Equivalent proceeds (other than Excluded Contributions)
from and/or the fair market value of assets received
(i) from the sale or transfer of
Equity Interests (other than any Disqualified Equity Interests and other than any Designated Equity Contribution or the Equity Contribution)
of the Borrower or any direct or indirect parent of the Borrower after the Closing Date and on or prior to such time (including upon
exercise of warrants or options) which proceeds or assets have been contributed as common
equity to the capital of the Borrower or (ii)Holdings,
(ii) from any increase to the equity capital account of Holdings as a result of any consolidation, merger or similar transaction
between any Person (other than Holdings or any Restricted Subsidiary) and Holdings or any Restricted Subsidiary or (iii) the
common Equity Interests of the Borrower (or Holdings (or
any direct or indirect parent of Holdings) (other than Disqualified Equity Interests of the BorrowerHoldings
(or any direct or indirect parent of the BorrowerHoldings)
and other than any Designated Equity Contribution or the Equity Contribution) issued upon conversion of Indebtedness (other than Indebtedness
that is contractually subordinated to the Obligations) of the BorrowerHoldings
or any Restricted Subsidiary of the Borrower owed to a Person other than
a Loan Party or a Restricted Subsidiary of a Loan Party, in each case, not previously applied for a purpose other than use in the Cumulative
Credit (including, for the avoidance of doubt, for the purposes of Section 7.03(m)(i)(y));
plus
(de) 100%
of the aggregate amount of contributions to the common capital (other than from a Restricted Subsidiary and other than any Designated
Equity Contribution or the Equity Contribution) of the Borrower received in (x) cash and Cash Equivalents
or (y) in the case of a Specified IPO, 100% of the Equity Interests of a subsidiary holding the net proceeds of such Specified IPO
in the form of cash or Cash Equivalents, in each caseHoldings received after
the Closing Date (other than Excluded Contributions or the Equity Contribution), excluding any such amount that has been applied in accordance
with Section 7.03(m)(i)(y); plus
(ef) 100%
of the aggregate amount received by the BorrowerHoldings
or any Restricted Subsidiary of the Borrower in cash and Cash Equivalents from:
(A) the
issuance, sale or other transfer or Disposition (other
than to the BorrowerHoldings or any Restricted
Subsidiary) of the Equity Interests of an Unrestricted Subsidiary, joint venture or any minority
investments, or
(B) any
dividend or other distribution by an Unrestricted Subsidiary or received in respect of any minority investment (except to the extent
increasing Consolidated Net Income and excluding Excluded Contributions or the Equity Contribution), or
(C) any
interest, returns of, profits, distributions,
principal payments and similar payments by an Unrestricted Subsidiary or joint venture or received
in respect of any minority investments (except to the extent increasing Consolidated Net Income), plus
(fg) in
the event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or has been merged, consolidated or amalgamated
with or into, or transfers or conveys its assets to, or is liquidated into, the BorrowerHoldings
or a Restricted Subsidiary, the fair market value of the Investments of the BorrowerHoldings
and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer
(or of the assets transferred or conveyed, as applicable) so long as such Investments were originally made pursuant to Section 7.02(n)(y),
plus
(gh) to
the extent not already included in Consolidated Net Income, an amount equal to any returns in cash and Cash Equivalents and/or
fair market value of assets (including dividends, interest, distributions, returns of principal, profits on sale, repayments,
income and similar amounts) actually received by the BorrowerHoldings
or any Restricted Subsidiary in respect of any Investments made pursuant to Section 7.02(n)(y)not
prohibited hereunder, plus
(hi) 100%
of the aggregate amount of any Declined Proceeds, minus
(ij) any
amount of the Cumulative Credit used to make Investments pursuant to Section 7.02(n)(y) after the Closing Date and prior
to such time, minus
(jk) any
amount of the Cumulative Credit used to pay dividends or make distributions pursuant to Section 7.06(h)(y) after the
Closing Date and prior to such time, minus
(kl) any
amount of the Cumulative Credit used to make payments or distributions in respect of Junior Financings pursuant to Section 7.13(a)(iv)(y) after
the Closing Date and prior to such time.
“Cumulative
Retained Asset Sale Proceeds Amount” means the cumulative portion (since the Amendment No. 9 Effective Date) of the Net
Proceeds of Dispositions not required to be applied to prepay the Term Loans pursuant to Section 2.05(b)(ii) and the Net Proceeds
of any Disposition not otherwise prohibited by Section 7.05, including those Net Proceeds not required to prepay the Term Loans
due to the Applicable Asset Sale Percentage being less than 100%, but excluding, for the avoidance of doubt, any Declined Proceeds.
“Cure
Expiration Date” has the meaning set forth in Section 8.05(a).
“Current Assets”
means, with respect to the BorrowerHoldings
and the Restricted Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash and Cash Equivalents)
of the BorrowerHoldings and the Restricted
Subsidiaries that would, in accordance with GAAP, be classified on a consolidated balance sheet of the
BorrowerHoldings and its Restricted Subsidiaries as current assets at such
date of determination, other than amounts related to current or deferred Taxes based on income or profits (but excluding assets held
for sale, loans (permitted) to third parties, pension assets, deferred bank fees and derivative financial instruments).
“Current Liabilities”
means, with respect to the BorrowerHoldings
and the Restricted Subsidiaries on a consolidated basis at any date of determination, all liabilities of the
BorrowerHoldings and the Restricted Subsidiaries that would, in accordance
with GAAP, be classified on a consolidated balance sheet of the BorrowerHoldings
and its Restricted Subsidiaries as current liabilities at such date of determination, other than (a) the current portion
of any Indebtedness, (b) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is past due and
unpaid), (c) accruals for current or deferred Taxes based on income or profits, (d) accruals of any costs or expenses related
to restructuring reserves, and (e) any Revolving Credit Exposure.
“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
the “SOFR Determination Date”) that is five Business Days (or such other period as determined by the Borrower and
the Administrative Agent based on then prevailing market conventions) prior to (i) if such SOFR Rate Day is a Business Day, such
SOFR Rate Day or (ii) if such SOFR Rate Day is not a Business Day, the Business Day immediately preceding such SOFR Rate Day, and
(b) the Applicable Term SOFR Floor. If by 5:00 pm (New York City time) on the second Business Day immediately following any SOFR
Determination Date, the SOFR in respect of such SOFR Determination Date has not been published on the Federal Reserve Bank of New York’s
Website and a Replacement Event with respect to the Daily Simple SOFR has not occurred, then the SOFR for such SOFR Determination Date
will be the SOFR as published in respect of the first preceding Business Day for which such SOFR was published on the Federal Reserve
Bank of New York’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 five consecutive Business Days.
“Daily
SOFR Loan” means any Loan bearing interest at a rate determined by reference to Daily Simple SOFR and made pursuant to clause
(a)(ii) of the definition of “Term SOFR” or Section 3.03.
“Debt Fund Affiliate”
means (i) any fund or client managed by, or under common management with GSO
Capital Partners LPBlackstone Alternative Credit Advisors LP, Blackstone Real Estate
Special Situations Advisors L.L.C. and Blackstone Tactical Opportunities Fund L.P., (ii) any fund or
client managed by GSO Debt Funds Management LLC,an
adviser within the credit focused division of Blackstone DebtInc.
or Blackstone ISG-I Advisors L.P., Blackstone Distressed Securities Advisors L.P., Blackstone
Mezzanine Advisors L.P. or Blackstone Mezzanine Advisors II L.P., and (iiiL.C., (iii) The
Blackstone Strategic Opportunity Funds (including masters, feeders, onshore, offshore and parallel funds), (iv) funds and accounts
managed by Blackstone Alternative Solutions, L.L.C. or its Affiliates and (v) any other Affiliate of the Investors
or HoldingsPermitted Holders or the Borrower that is a bBona
fFide dDebt
fFund or an investment vehicle that is engaged
in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary
course.
“Debtor Relief Laws”
means the Bankruptcy Code of the United States, the Insolvency Act 1986, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization
or similar debtor relief Laws of the United States, the United Kingdom or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined Proceeds”
has the meaning set forth in Section 2.05(b)(xviii).
“Default”
means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“Default Rate”
means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Revolving Credit Loans
that are Base Rate Loans plus (c) 2.0% per annum; provided that with respect to the overdue principal or interest in respect
of a RFR Loan or a Term SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan, plus 2.0% per annum, in each case to the fullest extent permitted by applicable Laws.
“Default
Right” has the meaning set forth in Section 10.25(b).
“Defaulting Lender”
means any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender
Default.”
“Delaware Divided
LLC” means any Delaware LLC which has been 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.
“Designated Equity
Contribution” has the meaning set forth in Section 8.05(a).
“Discount Prepayment
Accepting Lender” has the meaning set forth in Section 2.05(a)(v)(B)(2).
“Discount Range”
has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Discount Range Prepayment
Amount” has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Discount Range Prepayment
Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(v)(C) substantially
in the form of Exhibit ML-4.
“Discount Range Prepayment
Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit ML-5,
submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment
Response Date” has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Discount Range Proration”
has the meaning set forth in Section 2.05(a)(v)(C)(3).
“Discounted Prepayment
Determination Date” has the meaning set forth in Section 2.05(a)(v)(D)(3).
“Discounted Prepayment
Effective Date” means in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range
Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the Specified Discount
Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable,
in accordance with Section 2.05(a)(v)(B)(1), Section 2.05(a)(v)(C)(1) or Section 2.05(a)(v)(D)(1),
respectively, unless a shorter period is agreed to between the Borrower and the Auction Agent.
“Discounted Term Loan
Prepayment” has the meaning set forth in Section 2.05(a)(v)(A).
“Disposed EBITDA”
means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period, the amount for such period
of Consolidated EBITDA of such Sold Entity or Business (determined as if references to the BorrowerHoldings
and the Restricted Subsidiaries in the definition of Consolidated EBITDA (and in the component definitions used therein) were
references to such Sold Entity or Business and its Subsidiaries or such Converted Unrestricted Subsidiary and its Subsidiaries) or such
Converted Unrestricted Subsidiary, all as determined on a consolidated basis for such Sold Entity or Business or such Converted Unrestricted
Subsidiary.
“Disposition”
or “Dispose” means the sale, transfer, license, lease or other disposition (including any sSale
and leasebackLease-Back tTransaction
and any sale or issuance of Equity Interests in a Restricted Subsidiary) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith
and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division;
provided that “Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any
of its Equity Interests to another Person.
“Disqualified Equity
Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which
it is convertible or for which it is putable or exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking
fund obligation or otherwise (except as a result of a change of control or asset sale or casualty, eminent
domain or condemnation event so long as any rights of the holders thereof upon the occurrence of a change of control or asset
sale or casualty, eminent domain or condemnation event shall be subject to the prior repayment
in full of the Loans and all other Obligations (other than obligations under any Secured Hedge Agreement,
obligations under any Treasury Services Agreement, contingent indemnification obligations and other contingent obligations not then due
and payable) that are accrued and payable and the termination of the Commitments and the termination or expiration of all
outstanding Letters of Credit (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized, backstopped
by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable
to the applicable L/C Issuer)), (b) is redeemable or exchangeable at the option of the
holder thereof (other than solely for Qualified Equity Interests and other than as a result of a change of control or asset sale or
casualty, eminent domain or condemnation event so long as any rights of the holders thereof upon the occurrence of a change
of control or asset sale or casualty, eminent domain or condemnation event shall be subject
to the prior repayment in full of the Loans and all other Obligations (other than obligations under any
Secured Hedge Agreement, obligations under any Treasury Services Agreement, contingent indemnification obligations and other contingent
obligations not then due and payable) that are accrued and payable and the termination of the Commitments and the expiration
or termination of all outstanding Letters of Credit (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash
Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another
agreement reasonably acceptable to the applicable L/C Issuer)), in whole or in part, (c) provides for the scheduled payments of
dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would
constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date
at the time of issuance of such Equity Interests; provided that if such Equity Interests are issued pursuant to a plan for the
benefit of employeesfuture, present or former employees,
directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members)
of Holdings (or any direct or indirect parent thereof), the BorrowerHoldings
or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified
Equity Interests solely because it may be required to be repurchased by the BorrowerHoldings
or its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.;
provided further, however, that any Equity Interests held by any future, current or former employee, officer, manager, consultant, director,
employee or independent contractor (or their Controlled Investment Affiliates or Immediate Family Members), of Holdings, any of its Subsidiaries,
any of its parent entities or any other entity in which Holdings or a Restricted Subsidiary has an Investment and is designated in good
faith as an “affiliate” by the board of directors (or similar body) of the Borrower (or any direct or indirect parent thereof),
in each case pursuant to any equity option or equity appreciation rights plan, any management, director and/or employee equity ownership
or incentive plan, equity subscription plan or subscription agreement, employment termination agreement or any other employment agreement
or equity holders’ agreement shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased
by Holdings or its Subsidiaries; and provided further, however, that any class of Equity Interests of such Person that by its terms authorizes
such Person to satisfy its obligations thereunder by delivery of Equity Interests that is not Disqualified Equity Interests shall not
be deemed to be Disqualified Equity Interests.
“Disqualified Lenders”
means (i) those persons identified by the Borrower (or one of its Affiliates) or the Sponsor to
the Administrative Agent in writing on or prior to April 4, 2014, (ii) competitors
of the Borrower identified by the Borrower to the Administrative Agent in writing from time to time before or after the Closing Date
and (iii) any Affiliate of any Person described in clause (i) or
(ii) that is reasonably identifiable by name as an Affiliate of such Person, other than bona fide debt fund Affiliates
of such Person. The list of Disqualified Lenders shall be made available to any Lender upon request to the Administrative Agent.
“Distressed Person”
has the meaning set forth in the definition of “Lender-Related Distress Event.”
“Dollar”
and “$” mean lawful money of the United States.
“Dollar Denominated
LoanLetter of Credit” means any
LoanLetter of Credit incurred in Dollars.
“Dollar Denominated
Letter of CreditLoan” means any
Letter of CreditLoan incurred in Dollars.
“Dollar Equivalent”
means, with respect to an amount of an Approved Currency other than Dollars, the equivalent amount thereof in Dollars as determined by
the Administrative Agent or the applicable L/C Issuer 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 Approved Currency.
“Dollar Senior Notes”
means collectively the Dollar-denominated unsecured notes of the Borrower and Gates Global Co. due
20222029 in an aggregate principal amount
of $1,040,000,000500,000,000 issued on
June 264, 2014
pursuant to the Senior Notes Indenture and the Additional Notes2024.
“Dollar Senior Notes
Documents” means the Senior Notes Indenture and the other transaction documents referred to therein (including the related
guarantee, the notes and the notes purchase agreement).
“Dollar Term Lender”
means, at any time, any Lender that has an Initial B-2-4
Dollar Term Commitment, an Initial B-3 Dollar Term Commitment, an Initial B-4-5
Dollar Term Commitment or a Dollar Term Loan.
“Dollar Term Loan”
means any Initial B-2-4 Dollar Term Loan,
any Initial B-3-5 Dollar Term Loan,
an Initial B-4 Dollar Term Loan, or any Incremental Term Loan, Refinancing Term Loan or Extended Term Loan designated
as a “Dollar Term Loan,” as the context may require.
“Domestic Subsidiary”
means any Subsidiary of the Borrower that is organized under the Laws of the United States,
any state thereof or the District of Columbia.
“ECF
Payment Amount” has the meaning set forth in Section 2.05(b).
“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 Loans of any Class, the effective yield on such Loans, taking into account the
applicable interest rate margins, any interest rate floors or similar devices and all
fees, including upfront or similar fees or OID (amortized over the shorter of (x) the original stated
life of such Loans and (y) the four years following the date of incurrence thereof) payable generally
to Lenders making such Loans, but excluding arrangement fees, structuring fees, commitment fees, underwriting
fees or other fees payable to any lead arranger (or its affiliates) in connection with the commitment
or syndication of such Indebtedness.
“Eligible Assignee”
has the meaning set forth in Section 10.07(a).
“Environment”
means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata and natural resources such
as wetlands, flora and fauna.
“Environmental Laws”
means any applicable Law relating to pollution, protection of the Environment and natural resources, pollutants, contaminants, or chemicals
or any toxic or otherwise hazardous substances, wastes or materials, or the protection of human health and safety as it relates to exposure
to any of the foregoing, including any applicable provisions of CERCLA.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of investigation and remediation, fines, penalties
or indemnities), of or relating to the Loan Parties or any of their respective Subsidiaries directly
or indirectly resulting from or based upon (a) violation of, or liability under or relating to,
any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, or
(d) the actual or alleged presence, Release or threatened Release of any Hazardous Materials or
(e) any, including, in each case of (a) through (d), any such liability which
any Loan Party has retained or assumed pursuant to any written contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit”
means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equal
Priority Intercreditor Agreement” means an intercreditor agreement substantially in the form of Exhibit J-1
(which agreement in such form or with immaterial changes thereto the Collateral Agent is authorized to enter into) among Holdings, the
Borrower, the Subsidiaries of the Borrower from time to time party thereto, the Collateral Agent and one or more collateral agents or
representatives for the holders of Indebtedness that are not prohibited under Section 7.03 to be, and intended to be, secured on
an equal priority basis (without giving effect to the control of remedies) basis with the Liens on the Collateral securing the Obligations.
“Equity
Contribution” means the direct or indirect contribution by the Investors and certain other Persons (including the Management
Stockholders) to the Borrower of an aggregate amount of cash and rollover equity in Holdings (or another direct or indirect parent
company of the Borrower) (which, to the extent in respect of any equity of Holdings other than common stock, shall be on terms reasonably
acceptable to the Lead Arrangers and which, to the extent in respect of any equity of the Borrower, shall be in the form of common stock)
that represents not less than 22.5% of the sum of (1) the aggregate gross proceeds received from the Initial Dollar Term Loans and
Initial Euro Term Loans, (2) the aggregate gross proceeds received from Revolving Credit Loans, if any, and loans under the ABL
Credit Agreement (as defined in this Agreement as of the Closing Date), if any, made on the
Closing Date, excluding any loans to fund working capital needs on the Closing Date, (3) the aggregate gross proceeds received from
the Senior Notes issued on the Closing Date, excluding any increase in funded debt to fund original issue discount or upfront fees added
to the Senior Notes on the Closing Date, (4) the aggregate principal amount of any other Indebtedness for borrowed money incurred
to fund any portion of (or assumed in connection with) the Transactions and (5) the amount of such cash contribution by the Investors
and such other Persons and the fair market value of the equity of management and existing shareholders of the Company rolled over or
invested, in each case on the Closing Date.
“Equity
Incentives” has the meaning set forth in clause (10) of the definition of “Consolidated Net Income”.
“Equity Interests”
means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of
capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for
the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“Equity
Offering” means any public or private sale or issuance of Equity Interests (excluding Disqualified Equity Interests) of the
Borrower or any of its direct or indirect parent companies other than (a) public offerings with respect to the Borrower’s
or any direct or indirect parent company’s common equity registered on Form S-8 and (b) issuances to any Subsidiary of
Holdings and any such public or private sale or issuance that constitutes an Excluded Contribution.
“Equityholding
Vehicle” means any direct or indirect parent entity of Holdings and any equityholder thereof through which Management Stockholders
hold Equity Interests of Holdings or such parent entity.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with a Loan Party or any Restricted Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414(m) or (o) of
the Code.
“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by a Loan Party, any Restricted Subsidiary or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Loan Party,
any Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan or a notification or determination that a Multiemployer Plan
is in reorganizationinsolvent; (d) the
filing by the PBGC of a notice of intent to terminate any Pension Plan, the treatment of a Pension Plan or Multiemployer Plan amendment
as a termination under Sections 4041 or Section 4041A
of ERISA, respectively, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) appointment
of a trustee to administer any Pension Plan or Multiemployer Plan; (f) with respect to a Pension Plan, the failure to satisfy the
minimum funding standards (within the meaning of Section 412 of the Code or Section 302,
303 or 304 of ERISA) applicable to such Pension Plan, whether or not waived;
(g) any Foreign Benefit Event; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon a Loan Party, any Restricted Subsidiary or any ERISA Affiliate.
“Erroneous
Payment” has the meaning assigned to it in Section 9.16(a).
“Erroneous
Payment Deficiency Assignment” has the meaning assigned to it in Section 9.16(d).
“Erroneous
Payment Impacted Class” has the meaning assigned to it in Section 9.16(d).
“Erroneous
Payment Return Deficiency” has the meaning assigned to it in Section 9.16(d).
“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 Rate”
means, with respect to any RFR Loan denominated in Euro for any Interest Period, the rate per annum equal to the European Money Markets
Institute EURIBO Rate (“BFEA EURIBOR”), as published by Reuters (or another commercially available source providing
quotations of BFEA EURIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
TARGET Days prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period (the “EURIBOR Screen Rate”); provided that to the extent that
an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “EURIBO Rate” shall be
the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Euro
are offered for such relevant Interest Period to major banks in the European interbank market by the Administrative Agent at approximately
11:00 a.m. (London time) on the date that is two TARGET Days prior to the beginning of such Interest Period; provided that
solely with respect to the Initial Term Loans, the EURIBO Rate shall be deemed to not be less than 0.00% per annum in all cases.
“EURIBOR Screen Rate”
has the meaning provided in the definition of “EURIBO Rate.”
“euro” means
the single currency of Pparticipating Mmember
Sstates of the economic and monetary union
in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.
“Euro
Sublimit” means the Dollar Equivalent of euros equal to $25,000,000.
“Euros Outstanding”
means the Outstanding Amount of all Revolving Credit Loans, and
L/C Obligations and Swing Line Loans, in each case, to the extent denominated
in euros.
“Euro Senior Notes”
means the euro-denominated unsecured notes of the Borrower and Gates Global Co. due 2022 in an aggregate principal amount of €235,000,000
issued on June 26, 2014 pursuant to the Senior Notes Indenture.
“Euro Senior Notes
Documents” means the Senior Notes Indenture and the other transaction documents referred to therein (including the related
guarantee, the notes and the notes purchase agreement).
“Euro
Term Lender” means, at any time,
any Lender that has an Initial B-2 Euro Term Commitment or a Euro Term Loan.
“Euro Term Loan”
means any Initial B-2 Euro Term Loan or any Incremental Term Loan, Refinancing Term Loan or Extended Term Loan designated as a “Euro
Term Loan,” as the context may require.
“Euro Sublimit”
means the Dollar Equivalent of euros equal to $25,000,000.
“Event of Default”
has the meaning set forth in Section 8.01.
“Excess Cash Flow”
means, for any period, an amount (which
shall not be less than zero) equal to (a) the sum, without duplication, of (i) Consolidated Net Income for such
period, (ii) an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net
Income, (iii) decreases in Consolidated Working Capital and long-term accounts receivable of the
BorrowerHoldings
and its Restricted Subsidiaries for such period (other than any such decreases arising from acquisitions or dispositions by
the BorrowerHoldings
and its Restricted Subsidiaries completed during such period or the application of purchase accounting), and (iv) an
amount equal to the aggregate net non-cash loss on Dispositions by the BorrowerHoldings
and its Restricted Subsidiaries during such period (other than sales in the ordinary course of business) or any cash gain,
in each case to the extent deducted in arriving at such Consolidated Net Income, minus (b) the sum, without duplication, of (i) an
amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges included in
clauses (1) through (17)22)
and the last paragraph of the definition of “Consolidated Net Income,” (ii) without
duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the
amount of Capital Expenditures or acquisitions of intellectual property to the extent not expensed and Capitalized Software Expenditures accrued or made in cash or accrued during such period, to the extent that such Capital Expenditures or acquisitions were financed
with internally generated cash or borrowings under the Revolving Credit
Facility and were not made by utilizing clause (b) of the definition of the Cumulative Credit,
(iii) the aggregate amount of all principal payments of Indebtedness of the
Borrower or its Restricted Subsidiaries during such period (including (A) the principal component
of payments in respect of Capitalized Leases, (B) the amount
of any scheduled repayment of Term Loans pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant
to Section 2.05(b)(ii) to the extent required due to a Disposition that resulted in an increase to Consolidated Net Income
and not in excess of the amount of such increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans
and all prepayments and repayments of Revolving Credit Loans and Swing Line Loans and (Y) all
prepayments in respect of any other revolving credit facility, except in the case of clause (Y) to the extent there is an equivalent
permanent reduction in commitments thereunder), to the extent financed
with internally generated cash, (iv) an amount equal to the aggregate net non-cash
gain on Dispositions by the BorrowerHoldings
and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent
included in arriving at such Consolidated Net Income, (viii) increases
in Consolidated Working Capital and long-term accounts receivable of the BorrowerHoldings
and its Restricted Subsidiaries for such period (other than any such increases arising from acquisitions or dispositions by
the BorrowerHoldings
and its Restricted Subsidiaries during such period or the application of purchase accounting), (vi) cash
payments by the Borrower and its Restricted Subsidiaries during such period in respect
of long-term liabilities of the Borrower and its Restricted Subsidiaries
other than Indebtedness, (vii) without duplication of amounts deducted pursuant to clause (xi) below
in prior fiscal years, the amount of Investments and acquisitions made by
the Borrower and its Restricted Subsidiaries during such period and
paid in cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)) to
the extent that such Investments and acquisitions were financed with internally generated cash or the
proceeds of Revolving Credit Loans and were not made by utilizing clause (b) of the definition of the Cumulative Credit, (viii) the
amount of Restricted Payments paid during such period pursuant to Section 7.06(i) (clauses
(i), (ii) or (iii) only) or Section 7.06(g) to the extent such Restricted Payments
were financed with internally generated cash or the proceeds of Revolving
Credit Loans, (ix) the aggregate amount of expenditures actually
made by the Borrower and its Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees) to the extent that such expenditures are not expensed during such period and
were financed using internally generated cash, (x) the aggregate amount of any premium, make-whole
or penalty payments actually paid in cash by the Borrower and its Restricted
Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness, (xi) without
duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration
required to be paid in cash by the Borrower and its Restricted Subsidiaries
pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating
to acquisitions that constitute Investments permitted under this Agreement or Capital Expenditures
or acquisitions of intellectual property to the extent not expected
to be consummated or made, plus any restructuring cash expenses, pension payments or tax contingency
payments that have been added to Excess Cash Flow pursuant to clause (a)(ii) above required to be made, in
each case 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 of internally generated cash not
utilizing clause (b) of the definition of the Cumulative Credit actually utilized to finance
such Investment, Capital Expenditures or acquisitions of intellectual property during such period of
four consecutive fiscal quarters is less than the Contract Consideration,
the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such
period of four consecutive fiscal quarters, (xii) the amount of cash taxes paid in such period
to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income
for such period, (xiiiiv)
cash expenditures in respect of Swap Contracts during such fiscal yearperiod
to the extent not deducted in arriving at such Consolidated Net Income,
and (xivv)
any payment of cash to be amortized or expensed over a future period and recorded as a long-term asset. Notwithstanding anything in the
definition of any term used in the definition of Excess Cash Flow to the contrary, all components of Excess Cash Flow shall be computed
for the BorrowerHoldings
and its Restricted Subsidiaries on a consolidated basis.
“Excess Cash Flow Period”
means each fiscal year of the Borrower commencing with the fiscal year ending December 31, 2015.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Excluded Assets”
has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Excluded
Contribution” means net cash proceeds, marketable securities or Qualified Proceeds received by the
BorrowerHoldings
from:
(1) contributions
to its common equity capital;
(2) dividends,
distributions, fees and other payments (A) from Unrestricted Subsidiaries and any of their Subsidiaries, (B) received in respect
of any minority investments and (C) from any joint ventures that are not Restricted Subsidiaries; and
(3) the
sale (other than to a Subsidiary of the Borrower or to any management equity plan or stock option plan or any other management or employee
benefit plan or agreement of the BorrowerHoldings
) of Equity Interest (other than Disqualified Equity Interests, the Equity Contribution and preferred stock) of the
BorrowerHoldings (or any direct or indirect parent of the
BorrowerHoldings to the extent contributed as common Equity Interests by the
BorrowerHoldings);
in each case to the extent designated as Excluded
Contributions by the Borrower within 180 days of the date such capital contributions are made, such
dividends, distributions, fees or other payments are paid, or the date such Equity Interests are sold,
as the case may beHoldings.
“Excluded Subsidiary”
means (a) any Subsidiary that is not a wholly owned Subsidiary of the Borrower or a Guarantor, (b) any Subsidiary of a Guarantor
that does not have total assets in excess of 1.0% of Total Assets, individually or in the aggregate with all other Subsidiaries excluded
via this clause (b), (c) [reserved]any Securitization
Subsidiary, (d) any Subsidiary that is prohibited by applicable Law (whether on the Closing
Date or thereafter) or Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired Subsidiary,
in existence at the time of acquisition but not entered into in contemplation thereof) from guaranteeing the Obligations or if guaranteeing
the Obligation would require governmental (including regulatory) consent, approval, license or authorization (unless such consent, approval,
license or authorization has been obtained), (e) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative
Agent, in consultation with the Borrower, the burden or cost or other consequences (including any material adverse tax consequences)
of providing a Guarantee shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (f) any direct or indirect
Foreign Subsidiary of the Borrower, (g) any Subsidiary with respect to which the provision of a guarantee by it would result in
material adverse tax consequences to Holdings, the Borrower, or any of itsthe
Restricted Subsidiaries, as reasonably determined by the Borrower in consultation with the Administrative Agent, (h) any
not-for-profit Subsidiaries, (i) any Unrestricted Subsidiaries and,
(j) any direct or indirect Subsidiary (x) that is a direct or indirect Domestic
Subsidiary of a direct or indirect Foreign Subsidiary that is a CFC or (y) substantially all of the assets of which consist of capital
stock and/or indebtedness of (i) one or more Foreign Subsidiaries that are CFCs or (ii) other Subsidiaries described in clause
(j)(x) above or this clause (j)(y), and any other assets incidental thereto (any Subsidiary described in this clause (j)(y), a “FSHCO”),
(k) any special purpose entities and (l) any captive insurance subsidiaries.;
provided that for the avoidance of doubt (i) at the option of the Borrower, any Excluded Subsidiary may issue a Guaranty and become
a Guarantor as described in clause (iii) of the definition of “Guarantors” and (ii) any Person that becomes a Guarantor
pursuant to clause (iii) of the definition of “Guarantors” shall cease to constitute an Excluded Subsidiary, and shall
not be released from its obligations under the Guaranty, solely on the basis that, prior to becoming a Guarantor, such Person constituted
an Excluded Subsidiary.
“Excluded Swap Obligation”
means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such
Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes
illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application
or official interpretation of any thereof) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract
participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Section 11.12
and any other applicable agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s
Swap Obligations by other Loan Parties), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor
becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject
to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,”
as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest
by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation
designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties
and the Approved Counterparty applicable to such Swap Obligations. If a Swap Obligation arises under a master agreement governing more
than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to the Swap for which such
guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Existing
Letters of Credit” means those letters of credit in existence on the Amendment No. 9 Effective Date and listed on Schedule
II to Amendment No. 9.
“Existing Revolver
Tranche” has the meaning set forth in Section 2.16(b).
“Existing Term Loan
Tranche” has the meaning set forth in Section 2.16(a).
“Expiring
Credit Commitment” has the meaning set forth in Section 2.04(g).
“Extended Revolving
Credit Commitments” has the meaning set forth in Section 2.16(b). The New Revolving
Credit Commitments shall be deemed Extended Revolving Credit Commitments for all purposes of this Agreement.
“Extended Revolving
Credit Loans” means one or more Classes of Revolving Credit Loans that result from an Extension Amendment. The
New Revolving Credit Loans shall be deemed Extended Revolving Credit Loans for all purposes of this Agreement.
“Extended Term Loans”
has the meaning set forth in Section 2.16(a).
“Extending Revolving
Credit Lender” has the meaning set forth in Section 2.16(c). The New Revolving
Credit Lenders shall be deemed Extending Revolving Credit Lenders for all purposes of this Agreement.
“Extending Term Lender”
has the meaning set forth in Section 2.16(c).
“Extension”
means the establishment of an Extension Series by amending a Loan pursuant to Section 2.16 and the applicable Extension
Amendment.
“Extension Amendment”
has the meaning set forth in Section 2.16(d). Amendment No. 49
shall be deemed an Extension Amendment with respect to the Initial B-3 Dollar Term Loans
for all purposes of this Agreement. Amendment No. 5 shall be deemed an Extension Amendment with respect to the New Revolving
Credit Commitments for all purposes of this Agreement.
“Extension Election”
has the meaning set forth in Section 2.16(c).
“Extension Request”
means any Term Loan Extension Request or a Revolver Extension Request, as the case may be.
“Extension Series”
means any Term Loan Extension Series or a Revolver Extension Series, as the case may be.
“Facility”
means the Initial B-2 Dollar Term Loans, , the Initial B-3-4
Dollar Term Loans, the Initial B-4-5
Dollar Term Loans, a given Class of Incremental Term Loans, a given Refinancing Series of Refinancing Term Loans, a given Extension
Series of Extended Term Loans, the New Revolving Credit Facility, a given Class of
Incremental Revolving Credit Commitments, a given Refinancing Series of Other Revolving Credit Commitments or a given Extension
Series of Extended Revolving Credit Commitments, as the context may require.
“FATCA”
means Sections 1471 through 1474 of the Code (including,
for the avoidance of doubt, any agreements entered into pursuant to
Section 1471(b)(1) of the Code), as of the Closing Date (andor
any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with),
any current or future Treasury Regulations or other officialpublished
administrative guidance promulgated thereunder and any intergovernmentalor
official interpretations thereof, any agreements entered into in connection with the implementation
thereof.pursuant
to Section 1471(b)(1) of the Code (or
any amended or successor version described above), any intergovernmental agreements, treaties, or conventions among Governmental Authorities
implementing the foregoing, and any laws, fiscal or regulatory legislation, or official guidance, rules or practices, in each case,
adopted by a non-U.S. jurisdiction to implement the foregoing.
“Federal Funds Rate”
means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members
of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published for any
day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
“Federal Reserve Bank
of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any
successor source.
“Fee Letter”
means that certain Amended and Restated Fee Letter, dated April 25, 2014, among Omaha Acquisition Inc., Credit Suisse AG, Cayman
Islands Branch, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc.,
Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., UBS AG, Stamford Branch, UBS
Securities LLC, Macquarie Capital (USA) Inc., MIHI LLC and Blackstone Holdings Finance Co. L.L.C., as amended, supplemented, modified
or further restated from time to time.
“Financial
Covenant” has the meaning set forth in Section 7.11.
“Financial Covenant
Event of Default” has the meaning provided in Section 8.01(b).
“Financing
Lease Obligation” means, at the time any
determination thereof is to be made, the amount of the liability in respect of a Financing
Lease; provided that any obligations of Holdings or
its Restricted Subsidiaries either existing on the Closing Date or created prior to any recharacterization described below (i) that
were not included on the consolidated balance sheet of Holdings as financing or
capital lease obligations and (ii) that are subsequently recharacterized as financing or capital
lease obligations or indebtedness due to a change in accounting treatment or otherwise, shall for all
purposes under this Agreement (including, without limitation, the calculation of Consolidated Net Income and Consolidated EBITDA) not
be treated as financing or capital lease obligations, Financing Lease
Obligations or Indebtedness.
“Financing
Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as a
financing or capital leases (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income
statement for financial reporting purposes; provided that at any time following the Closing Date and upon notice to the Administrative
Agent, Holdings may elect that “GAAP” as used in this definition, shall mean GAAP as in effect on January 1, 2015 and,
if such election is made by Holdings, then for all purposes hereunder the amount of obligations under any Financing Lease shall be the
amount thereof accounted for as a liability on a balance sheet in accordance with GAAP as in effect on January 1, 2015. For the
avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence
of Indebtedness.
“Fitch”
means Fitch Ratings, Inc. or any successor by merger or consolidation to its business.
“FIRREA”
means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended.
“First
Lien Intercreditor Agreement” means
an intercreditor agreement substantially in the form of Exhibit J-1
(which agreement in such form or with immaterial changes thereto the Collateral Agent is authorized to enter into) among Holdings,
the Borrower, the Subsidiaries of the Borrower from time to time party thereto, the Collateral Agent and one or more collateral agents
or representatives for the holders of Indebtedness that is permitted under
Section 7.03 to be, and intended to be, secured on a pari passu basis with
the Liens securing the Obligations.
“Fixed Asset Collateral”
means the “Cash Flow Collateral” as such term is defined in the ABL Intercreditor Agreement.
“Fixed Charges”
means, with respect to the BorrowerHoldings
and its Restricted Subsidiaries for any period, the sum of, without duplication:
(1) Consolidated
Interest Expense of Holdings and its Restricted Subsidiaries for such period (including
for purposes of clause (1)(b) of the definition of “Consolidated EBITDA” only, any non-cash interest expense);
(2) all
cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of preferred stock during such
period; and
(3) all
cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Equity Interests
during such period.
“Flood Insurance Laws”
means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto,
(ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National
Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform
Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act
of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Benefit Event”
means, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under
any applicable Law or in excess of the amount that would be permitted absent a waiver from any applicable
Governmental Authority or (b) the failure to make the required contributions or payments, under any applicable Law, on or before
the due date for such contributions or payments.
“Foreign Currency
Denominated Loan” means any Loan incurred in any Approved Foreign Currency.
“Foreign Currency
Denominated Letter of Credit” means any Letter of Credit denominated in an Approved Foreign Currency, other than, with respect
to each L/C Issuer, those Approved Foreign Currencies not authorized to be issued by such L/C Issuer as notified to the Administrative
Agent and the Borrower from time to time.
“Foreign
Currency Denominated Loan” means any Loan incurred in any Approved Foreign Currency.
“Foreign Disposition”
has the meaning set forth in Section 2.05(b)(xi).
“Foreign Pension Plan”
means any benefit plan that under applicable Law is required to be funded through a trust or other funding vehicle other than a trust
or funding vehicle maintained exclusively by a Governmental Authority.
“Foreign Subsidiary”
means any direct or indirect Restricted Subsidiary of
the Borrower that is not a Domestic Subsidiary.
“Foreign Subsidiary
Total Assets” means the total assets of the Foreign Subsidiaries, as determined on a consolidated basis in accordance with
GAAP in good faith by a Responsible Officer.
“FRB” means
the Board of Governors of the Federal Reserve System of the United States.
“Free and Clear Incremental
Amount” has the meaning set forth in Section 2.14(d)(v).
“Fronting Exposure”
means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer,
such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof,
and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing
Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized
in accordance with the terms hereof..
“FSHCO”
means any direct or indirect Subsidiary substantially
all of whose assets consist of Equity Interests and/or indebtedness of (i) one or more Foreign
Subsidiaries that are CFCs or (ii) other Subsidiaries described in this definition;
provided that in no event shall the term FSHCO be construed to include a Co-Borrower.has
the meaning set forth in the definition of “Excluded Subsidiary”.
“Fund” means
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.
“GAAP” means
generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however,
that (i) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of any change in accounting principles or change as a result of the adoption or modification
of accounting policies (including, but not limited to, 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) occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith, but in
the case of an amendment requested by the Required Lenders, only to the extent that, without undue burden or expense, the Borrower, its
auditors and/or its financial systems are capable of interpreting such provisions as if such change in accounting principles or change
as a result of the adoption or modification of accounting policies had not occurred, (ii) GAAP shall be construed, and
all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB ASC Topic 825
(or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the
Borrower or any of its Subsidiaries at “fair value,” as defined therein, and Indebtedness shall be measured at the aggregate
principal amount thereof, and (iii) the accounting for operating leases and financing
or capital leases under GAAP as in effect on the date hereofJanuary 1,
2015 (including, without limitation, Accounting Standards Codification 840) shall apply for the purposes of determining compliance
with the provisions of this Agreement, including the definition of CapitalizedFinancing
Leases and obligations in respect thereof.
“Governmental Authority”
means any nation or government, any state or local or other political subdivision thereof,
any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank,
self-regulatory organization or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government including any applicable supranational bodies (such
as the European Union or the European Central Bank).
“Granting Lender”
has the meaning set forth in Section 10.07(i).
“Guarantee”
means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other monetary obligation payable
or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other
monetary obligation of the payment or performance of such Indebtedness or other monetary
obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary
obligation, or (iv) 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 (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person,
whether or not such Indebtedness or other monetary obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements for collection or deposit, in either case 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 or disposition of assets permittednot
prohibited 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. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations”
has the meaning set forth in Section 11.01.
“Guarantors”
means, collectively, (i) Holdings, (ii) New Holdings, (iii) the wholly owned
Domestic Subsidiaries of the Borrower (other than any Excluded Subsidiary), (iiiiv)
those wholly owned Domestic Subsidiaries of the Borrower that issue a Guaranty of the Obligations
after the Closing Date pursuant to Section 6.11 or otherwiseany
other Person (including any Excluded Subsidiary) organized under the laws of the United States, any state thereof or the District of
Columbia or, to the extent reasonably acceptable to the Administrative Agent (and subject to clause (D) of the definition of “Collateral
and Guarantee Requirement”), any other jurisdiction that, at the option of the Borrower, issues a Guaranty of the Obligations
after the Closing Date and (ivv) solely in
respect of any Secured Hedge Agreement or Treasury Services Agreement to which the Borrower is not a party, the Borrower, in each case,
until the Guaranty thereof is released in accordance with this Agreement.
“Guaranty”
means, collectively, the guaranty of the Obligations by the Guarantors pursuant to this Agreement.
“Hazardous Materials”
means all hazardous or toxic materials, pollutants, contaminants, chemicals, compounds, constituents,
substances or wastes, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, per-
and polyfluoroalkyl substances, polychlorinated biphenyls, lead, radon gas, pesticides, fungicides,
fertilizers, or toxic mold, in each case that are regulated pursuant to,
or which cwould give rise to liability under,
applicable Environmental Law.
“Holding
Company” means (i) any Person so long as such Person directly or indirectly holds 100% of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests of Holdings or (ii) any Public Company or SPAC
IPO Entity, and at the time such Person, Public Company or SPAC IPO Entity, as applicable, acquired such voting power, no Person and
no group (within the meaning of Rules 13d-3 and 14d(2) under the Exchange Act as in effect on the Closing Date), including
any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act) (other than any Permitted Holder), shall have beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than 50% of the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of such Person.
“Holdings”
means Holdings I, or, after giving effect to the occurrence of a Holdings II Event and unless the context requires otherwise, Holdings
I and Holdings II, collectively, in which case Holdings I and Holdings II shall together own 100%
of the issued and outstanding Equity Interests in the Borrower.
“Holdings
I” means Omaha Holdings LLC, a Delaware limited liability company, if it is
the direct parent of the Borrower, or, if not, any
Domestic Subsidiary of Omaha Holdings LLC that (other than in the case of a Holdings II Event) directly
owns 100% of the issued and outstanding Equity Interests in the Borrower and issues a Guarantee of
the Obligations and agrees to assume the obligations of “Holdings” pursuant to this Agreement and the other Loan Documents
pursuant to one or more instruments in form and substance reasonably satisfactory to the Administrative Agent.
“Holdings II”
means, a direct Gates Industrial Holdco Limited, a corporation
incorporated under the laws of England and Wales, and any entity (or combination of entities) that is a Subsidiary of (or
are Subsidiaries of) Holdings I, 100% owned by Holdings I andor
any direct or indirect parent company of Holdings I,
organized under the Laws of the United States, any state thereof or the District of
Columbia, which is designated in writing to the Administrative Agent by Holdings I or and
directly or indirectly owns 100% of the issued and outstanding Equity Interests in the Borrower as
“Holdings II” and issues a Guaranteey
of the Obligations and agrees to separately, and jointly and severally, incurassume
the obligations of “Holdings” pursuant to this Agreement and the other Loan Documents pursuant to one or more
instruments in form and substance reasonably satisfactory to the Administrative Agent, in each case
in accordance with the last sentence of Section 7.14 (the occurrence thereof, a “Holdings II Event”).
“Honor Date”
has the meaning set forth in Section 2.03(c)(i).
“Identified Participating
Lenders” has the meaning set forth in Section 2.05(a)(v)(C)(3).
“Identified Qualifying
Lenders” has the meaning set forth in Section 2.05(a)(v)(D)(3).
“Immaterial Subsidiary”
has the meaning set forth in Section 8.03.
“Immediate
Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant,
parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law
and daughter-in-law (including adoptive relationships), the estates of such individual and such other individuals above and any trust,
partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private
foundation or fund that is Controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the
donor.
“Incremental Amendment”
has the meaning set forth in Section 2.14(f).
“Incremental Base
Amount” means the greater of (x) $590,000,000750,000,000
and (y) an amount equal to 100% of LTM Consolidated EBITDA for
the most recently ended period of four consecutive fiscal quarters ended prior to the date of determination for which financial statements
are internally available, calculated on a Pro Forma Basis.
“Incremental Commitments”
has the meaning set forth in Section 2.14(a).
“Incremental
Equivalent Debt” has the meaning set forth in Section 7.03(uw).
“Incremental Equivalent
First Lien Debt” has the meaning set forth in Section 7.03(q).
“Incremental Equivalent
Junior Lien Debt” has the meaning set forth in Section 7.03(q).
“Incremental
Equivalent Unsecured Debt” has the meaning set forth in Section 7.03(uw).
“Incremental
Facility” has the meaning set forth in Section 2.14(a).
“Incremental Facility
Closing Date” has the meaning set forth in Section 2.14(d).
“Incremental Lenders”
has the meaning set forth in Section 2.14(c).
“Incremental
Loan Request” has the meaning set forth in Section 2.14(a).
“Incremental Loans”
has the meaning set forth in Section 2.14(b).
“Incremental
Loan RequestReallocated General Debt Amount”
has the meaning set forth in Section 2.14(ad)(v).
“Incremental Revolving
Credit Commitments” has the meaning set forth in Section 2.14(a).
“Incremental Revolving
Credit Lender” has the meaning set forth in Section 2.14(c).
“Incremental Revolving
Credit Loans” has the meaning set forth in Section 2.14(b).
“Incremental
Revolving Facility” has the meaning set forth in Section 2.14(a).
“Incremental
Term Commitments” has the meaning set forth in Section 2.14(a).
“Incremental
Term CommitmentsFacility”
has the meaning set forth in Section 2.14(a).
“Incremental Term
Lender” has the meaning set forth in Section 2.14(c).
“Incremental Term
Loan” has the meaning set forth in Section 2.14(b).
“Incurrence-Based
Incremental Amount” has the meaning set forth in Section 2.14(d)(v).
“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the following:
(a) all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;
(b) the
maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding letters of
credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments
issued or created by or for the account of such Person;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property (including Financing Lease
Obligations) or services (other than (i) obligations in respect of a commercial or trade
letter of credit, current trade or other ordinary course payables or liabilities or trade accounts and accrued expenses payable
in the ordinary course of business, (ii) any earn-out obligation until such obligation becomesexcept
to the extent such earn-out (x) remains unpaid more than 60 days after the same has become due and payable (and such earn-out is
not being contested by the Borrower in good faith) and (y) is treated as a liability on the balance sheet of such
Person in accordance with GAAP andHoldings and its Restricted Subsidiaries,
(iii) accruals for payroll and other liabilities accrued in the ordinary course), (iv) liabilities
associated with customer prepayments and deposits and (v) obligations resulting from take-or-pay contracts entered into in the ordinary
course of business or consistent with past practices or industry norm;
(e) indebtedness
(excluding prepaid interest thereon) of the type designated in any of the causes (a) through (d) above
secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales
or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether
or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all
Attributable IndebtednessFinancing Lease Obligations;
(g) all
obligations of such Person in respect of Disqualified Equity Interests;
if and to the extent that any
of the foregoing would constitute indebtedness or a liability in accordance with GAAP; provided that Indebtedness of
any direct or indirect parent of the Borrower appearing on the balance sheet of the Borrower solely by reason of push-down accounting
under GAAP shall be excluded; and
(h) to
the extent not otherwise included above, all Guarantees of such Person in respect of any of the foregoing.
in
each case if and to the extent the any of the foregoing in clauses (a) through (d) (other than letters of credit
and obligations under Swap Contracts) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person
prepared in accordance with GAAP.
For all purposes hereof, the
Indebtedness of any Person shall (A) include the Indebtedness of any partnership or joint venture (other than a joint venture that
is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent
such Person’s liability for such Indebtedness is otherwise expressly limited and only to the extent such Indebtedness would be
included in the calculation of Consolidated Total Net Debt, (B) in the case of the BorrowerHoldings
and its Restricted Subsidiaries, exclude all intercompany Indebtedness having a term not exceeding 364 days (inclusive of
any roll-over or extensions of terms) and made in the ordinary course of business, (C) exclude contingent
obligations incurred in the ordinary course of business or consistent with industry practice, obligations under or in respect
of Non-Financing Lease Obligations, Qualified Securitization Facilities, straight-line leases, operating
leases or, sSale
lease-backand Lease-Back tTransactions
(except any resulting CapitalizedFinancing
Lease Obligations) or lease lease-back transactions, (D) exclude COLI
Loans and (E) exclude receivables or payables financing or factoring facilitiesobligations
under any license, permit or other approval (or guarantees given in respect of such obligations) incurred prior to the Closing Date or
in the ordinary course of business or consistent with past practice and (E) exclude (i) deferred or prepaid revenue, (ii) purchase
price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the
seller, (iii) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether
actual, contingent or potential) with respect thereto, (iv) accrued expenses and royalties, (v) in connection with the purchase
by Holdings or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled
to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business
after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable
and, to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner, (vi) any obligations
in respect of workers’ compensation claims, unemployment insurance, retirement, post-employment or termination obligations (including
pensions and retiree medical care), pension fund obligations or contributions or similar claims, or social security or wage taxes or
contributions, (vii) any liability for taxes, (viii) asset retirement obligations and other pension and other post-employment
benefit related obligations (including pensions and retiree medical care) and (ix) the COLI Loans. The amount of any
net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount
of Indebtedness of any Person for purposes of clause (e) above shall be deemed to be
equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness (not to exceed the maximum
amount of such Indebtedness for which such Person could be liable) and (ii) the fair market value of the property encumbered
thereby as determined by such Person in good faith. Notwithstanding anything in this definition to the contrary, Indebtedness shall
be calculated without giving effect to the effects of Financial Accounting Standards Board Accounting Standards Codification Topic
No. 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.
“Indemnified Liabilities”
has the meaning set forth in Section 10.05.
“Indemnified Taxes”
means, with respect to any Agent or any Lender, all Taxes imposed on or with respect to any payment made
by or on account of any obligation of any Loan Party under this Agreement or any other Loan Document, in each case, other
than (i) Taxes imposed on or measured by its net income, however denominated, and franchise (and similar) Taxes imposed in lieu
of net income Taxes, by a jurisdiction (Aa)
as a result of such recipientAgent or Lender
being organized in or having its principal office (or, in the case of any Lender, its applicable Lending Office) in such jurisdiction
(or any political subdivision thereof), or (Bb)
as a result of any other connection between such Lender or Agent and such jurisdiction other than any connections arising from executing,
delivering, being a party to, engaging in any transactions pursuant to, performing its obligations under, receiving payments under, orreceiving
or perfecting a security interest under, enforcing, or
having sold or assigned an interest in any Loan or any Loan Document, (ii) Taxes attributable to the failure by any
Agent orsuch Lender or Agent to
deliver the documentation required to be delivered pursuant to Section 3.01(d) or (g),
(iii) any branch profits Taxes imposed by the United States, or any similar Tax, imposed
by any jurisdiction described in clause (i) above, (iv) in the case of any Lender (other than an assignee pursuant to a request
by the Borrower under Section 3.07), any U.S. federal withholding Tax that is imposed pursuant to a law in effect on the
date such Lender acquires an interest in a Loan or Commitmentthe
applicable Commitment (or, in the case of an applicable interest in a Loan not funded by such Lender pursuant to a prior Commitment,
the date such Lender acquired such interest in such Loan), or designates a new Lending Office, except to the extent 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 with respect to such withholding Tax pursuant to Section 3.01,
and (v) any withholding Taxes imposed under FATCA. For the avoidance of doubt, the term “Lender” for purposes of this
definition shall include each L/C Issuer and Swing Line Lender.
“Indemnitees”
has the meaning set forth in Section 10.05.
“Information”
has the meaning set forth in Section 10.08.
“Initial B-1-3
Dollar Term Commitment” means
the Term Commitments of the Lender” means, at any time, any Lender
that has Initial B-3 Dollar Term Lenders as of the Amendment No. 1 Effective DateLoan
at such time.
“Initial B-1-3
Dollar Term Loans” means the Dollar-denominated term loans made by the Lenders on the Amendment No. 14
Effective Date to the Borrower pursuant to Section 2.01(a)(ii).
iv).
The initial aggregate principal amount of the “Initial B-1
Euro Term Commitment” means the Term Commitments of the Euro Term Lenders as of the-3
Dollar Term Loans on the Amendment No. 14
Effective Date. was $1,377,407,894.37. The
outstanding aggregate principal amount of the“ Initial B-1
Euro-3 Dollar Term Loans” means
the euro-denominated term loans made by the Lenders on the Amendment No. 19
Effective Date to the Borrower pursuant to Section 2.01(b)(ii)is
$0.
“Initial B-2-4
Dollar Term Commitment” means the Term Commitments of theAdditional
B-4 Dollar Term Lenders as of the Amendment No. 2 Effective DateCommitment.
“Initial
B-4 Dollar Term Lender” means, at any time, any Lender that has an Initial B-4 Dollar Term Loan at such time.
“Initial B-2 Dollar
Term Loans” means the Dollar-denominated term loans made by the Lenders on the Amendment No. 2 Effective Date to the Borrower
pursuant to Section 2.01(a)(iii).
“Initial
B-2 Euro Term Commitment” means, as to each Euro Term Lender, its obligations to make an Initial B-2 Euro Term Loan in euros
to the Borrower pursuant to Section 2.01(b)(iii) in an aggregate amount not to exceed the amount set forth opposite such Euro
Term Lender’s name in Schedule 1.01A under the caption “Initial B-2 Euro Term
Commitment” or in the Assignment and Assumption pursuant to which such Euro Term Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this Agreement (including Section 2.14). The initial aggregate
amount of the Initial B-2 Euro Term Commitments on the Amendment No. 2 Effective Date is €655,194,710.89.
“Initial
B-2 Euro Term Loans” means the euro-denominated term loans made by the Lenders on the Amendment No. 2
Effective Date to the Borrower pursuant to Section 2.01(b)(iii).
“Initial B-3-4
Dollar Term CommitmentLoan Obligations”
means the AdditionalObligations in respect of the Initial
B-3-4 Dollar Term CommitmentLoans.
“Initial B-3-4
Dollar Term Loans” means the Dollar-denominated term loans made by the Lenders on the Amendment No. 46
Effective Date to the Borrower pursuant to Section 2.01(a)(ivv).
The initial aggregate principal amount of the Initial B-3-4
Dollar Term Loans on the Amendment No. 46
Effective Date iswas $1,377,407,894.37575,000,000.
“Initial
B-5 Dollar Term Commitment” means the Additional B-5 Dollar Term Commitment.
“Initial B-3-5
Dollar Term Lender” means, at any time, any Lender that has an Additional B-3 Dollar
Term Commitment or Initial B-3-5
Dollar Term Loan at such time.
“Initial
B-4 Dollar Term Commitment” means
the Additional B-4 Dollar Term Commitment.
“Initial B-4-5
Dollar Term Loan Obligations” means the Obligations in respect of the Initial B-4-5
Dollar Term Loans.
“Initial B-4-5
Dollar Term Loans” means the Dollar-denominated term loans made by the Lenders on the Amendment No. 69
Effective Date to the Borrower pursuant to Section 2.01(a)(v). The initial aggregate principal amount of the Initial
B-4-5 Dollar Term Loans on the Amendment
No. 69 Effective Date is $575,000,0001,300,000,000.
“Initial B-4 Dollar
Term Lender” means, at any time, any Lender that has an Initial B-4 Dollar Term Loan at such time.
“Initial Dollar Term
Commitment” means the Term Commitments of the Dollar Term Lenders as of the Closing Date.
“Initial Dollar Term
Loans” means the Dollar-denominated term loans made by the Lenders on the Closing Date to the Borrower pursuant to Section 2.01(a)(i).
“Initial Euro Term
Commitment” means the Term Commitments of the Euro Term Lenders as of the Closing Date.
“Initial Euro Term
Loans” means the euro-denominated term loans made by the Lenders on the Closing Date to the Borrower pursuant
to Section 2.01(b)(i).
“Initial Revolving
Borrowing” means one or more borrowings of Revolving Credit Loans on the Closing Date; provided that, without limitation,
Letters of Credit may be issued on the Closing Date to backstop or replace letters of credit, guarantees and performance or similar bonds
outstanding on the Closing Date (including deemed issuances of Letters of Credit under this Agreement resulting from existing issuers
of letters of credit outstanding on the Closing Date agreeing to become L/C Issuers under this Agreement).
“Initial
Term Commitments” means, collectively, the Initial B-2 Dollar Term Commitments, Initial
B-3-4 Dollar Term Commitments and the Initial B-4-5
Dollar Term Commitments.
“Initial
Term Loans” means, collectively, the Initial B-2 Dollar Term Loans,
the Initial B-3-4 Dollar Term Loans and the Initial
B-4-5 Dollar Term Loans.
“Intellectual Property
Security Agreements” has the meaning set forth in the Security Agreement.
“Intercompany
License Agreement” means any cost-sharing agreement, commission or royalty agreement, license or sub-license agreement, distribution
agreement, services agreement, IP Rights transfer agreement or any related agreements, in each case where all the parties to such
agreement are one or more of Holdings and any Restricted Subsidiary thereof.
“Intercompany Note”
means a promissory note substantially in the form of Exhibit I.
“Intercreditor Agreements”
means the First Lien Intercreditor Agreement, the ABLany
Equal Priority Intercreditor Agreement and the Junior Lien Intercreditor Agreement, collectively, in each case to the extent
in effect.
“Interest Payment
Date” means, (a) as to any RFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date
of the Facility under which such Loan was made; provided that if any Interest Period for a RFR Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates, (b) as
to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date of the Facility under which such Loan was made, (c) as to any Term
SOFR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was
made; provided that if any Interest Period for a Term SOFR Loan exceeds three months, the respective dates that fall every three months
after the beginning of such Interest Period shall also be Interest Payment Dates and (d) with respect to any Daily SOFR Loan, each
date that is on the numerically corresponding day in each calendar month that is one month (or, at the Borrower’s option, three
months) after the borrowing date of such Daily SOFR Loan (or, if there is no such numerically corresponding day in such month, then the
last day of such month) and the date on which such Daily SOFR Loan is repaid (including the Maturity
Date) or converted in full.
“Interest Period”
means,
(a) (i) as to each
SONIA Rate Loan, the applicable SONIA Interest Period, and (ii) as to each other RFR Loan, the period commencing on the date such
RFR Loan is disbursed or converted to or continued as a RFR Loan and ending on the date one, two (other than with respect to the New
Revolving Credit Facility), three or six months thereafter or, to the extent agreed by each Lender of such RFR Loan,
twelve months or, to the extent agreed by the Administrative Agent, less than one month thereafter, as selected by the Borrower in its
Committed Loan Notice; and
(b) as to each Term SOFR
Loan, the period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending
on the date one, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice, or such other period that
is twelve months or less requested by the Borrower and consented to by all the Appropriate Lenders and the Administrative Agent (in the
case of each requested Interest Period, subject to availability);
provided
that:
(i) any
Interest Period that would otherwise end on a day that is not a Business Day shall, subject to clause (iii) below, be extended to
the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;
(ii) any
Interest Period (other than an Interest Period having a duration of less than one month) that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall
end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no
Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.;
and
(iv) to
the extent for purposes of creating a fungible Class of Term Loans, an Interest Period may end on the date of incurrence of any
Incremental Term Loans.
“Investment”
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution
(excluding accounts receivable, trade credit, advances or extensions of credit to customers and vendors,
commission, travel and similar advances to officers, directors, employees and consultants made in the ordinary course of business) to,
Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such other Person excluding, in the case of the
BorrowerHoldings and its Restricted Subsidiaries, (i) intercompany
advances arising from their cash management, tax, and accounting operations, in each case, in the ordinary course of business or consistent
with past practice and (ii) intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive
of any roll-over or extensions of terms) and made in the ordinary course of business or consistent
with past practice) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially
all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of
such Person. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured
at the time made), without adjustment for subsequent increases or decreases in the value of such Investment.
but less all returns, distributions and similar amounts received on such Investment (which
amounts received shall, for the avoidance of doubt, include the face amount of any Indebtedness of any Person making such Investment
which is assumed by an applicable counterparty, in each case, in respect of such Investment).
“Investor Management
Agreement” means an agreement among the Borrower and/or Holdings (or any direct or indirect parent entity of Holdings) and
Affiliates of (or management entities associated with) one or more of the Investors, as in effect from time to time and as the same may
be amended, supplemented or otherwise modified in a manner not materially adverse to the Lenders; provided that any management,
monitoring, consulting and advisory fees payable by the Borrower and/or Holdings and its Subsidiaries for any fiscal year shall not exceed
an amount equal to 2.0% of Consolidated EBITDA for such fiscal year.
“Investors”
means any of the Blackstone Funds and any of their Affiliates (other than any portfolio operating companies).
“IP Rights”
has the meaning set forth in Section 5.17.
“ISP” means,
with respect to any Letter of Credit, the “International Standby Practices 1998” published
by the Institute of (International Banking
Law & Practice, Inc.Chamber of Commerce publication number 590)
(or such later version thereof as may be in effect at the time of issuance).
“Junior Financing”
has the meaning set forth in Section 7.13(a).
“Junior Financing
Documentation” means any documentation governing any Junior Financing.
“Junior LienPriority
Intercreditor Agreement” means an intercreditor agreement substantially in
the form and substance reasonably satisfactory to the of
Exhibit J-2 (which agreement in such form, with immaterial changes thereto or with changes thereto that are posted to the Lenders
and not objected to in writing by the Required Lenders within five (5) Business Days, in each case, the Collateral Agent
and the Borrower, between the Collateralis authorized
to enter into by all Lenders) among the Administrative Agent and one or more collateral agents or representatives for the
holders of Indebtedness issued or incurred pursuant tothat
is not prohibited under Sections 7.03(g)(y)(i),
(q)(y) or (s) that are that is, or is intended to be,
secured by the Collateral on a basis junior
Lien basis to the Liens securing the Obligations. Wherever
in this Agreement, an Other Debt Representative is required to become party to the Junior Lien Intercreditor Agreement, if the related
Indebtedness is the initial Indebtedness incurred by the Borrower or any Restricted
Subsidiary to be secured by a Lien on a basis junior to the Liens securing the Obligations, then the
Borrower, Holdings, the Subsidiary Guarantors, the Collateral Agent and the Other Debt Representative for such Indebtedness shall execute
and deliver the Junior Lien Intercreditor Agreement.Initial Term Loans.
“Latest Maturity
Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such
time, including the latest maturity date of any Refinancing Term Loan, any Refinancing Term Commitment, any Extended Term Loan, any Extended
Revolving Credit Commitment, any Incremental Term Loans, any Incremental Revolving Credit Commitments or any Other Revolving Credit Commitments,
in each case as extended in accordance with this Agreement from time to time.
“Laws”
means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents, orders, decrees, injunctions or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“L/C Advance”
means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance
with its Pro Rata Share or other applicable share provided for under this Agreement. All L/C Advances shall be denominated in Dollars.
“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the applicable Honor
Date or refinanced as a Revolving Credit Borrowing. All L/C Borrowings shall be denominated in Dollars.
“L/C
Commitment” means, with respect to each L/C Issuer, the commitment of such L/C Issuer to issue Letters of Credit pursuant to
Section 2.03, as such commitment is set forth on Schedule 1.01A or if an L/C Issuer has entered into an Assignment and Assumption,
the amount set forth for such L/C Issuer as its L/C Commitment in the Register maintained by the Administrative Agent.
“L/C Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase
of the amount thereof.
“L/C Disbursement”
means any payment made by an L/C Issuer pursuant to a Letter of Credit.
“L/C Issuer”
means (i) Credit Suisse AG, Cayman Islands Branch, (ii)each
of Citibank, N.A., (iii) Barclays Bank PLC, (iv) Goldman Sachs
Bank USA and (v), HSBC Bank USA,
N.A., National Association, JPMorgan Chase Bank, N.A., Barclays Bank PLC, CIBC Bank USA,
PNC Bank, National Association, Santander Bank, N.A., UBS AG, Stamford Branch, Bank of America, N.A., KeyBank National Association, Morgan
Stanley Senior Funding, Inc. and Royal Bank of Canada, in each case, including through any of their respective Affiliates
or branches (in each case, with respect to standby letters of credit only), and any other Lender that becomes an L/C Issuer in accordance
with Sections 2.03(k) or 10.07(k), in each case, in its capacity as an issuer of Letters of Credit hereunder, or any
successor issuer of Letters of Credit hereunder. If there is more than one L/C Issuer at any given time, the term L/C Issuer shall refer
to the relevant L/C Issuer(s).
“L/C Obligations”
means, as at any date of determination, the aggregate principal amount available to be drawn
under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 2.03(l). For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP or
Rule 36 of UCP 600, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining
available to be drawn.
“Latest
Maturity Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder
at such time, including the latest maturity date of any Refinancing Term Loan, any Refinancing Term Commitment, any Extended Term Loan,
any Extended Revolving Credit Commitment, any Incremental Term Loans, any Incremental Revolving Credit Commitments or any Other Revolving
Credit Commitments, in each case as extended in accordance with this Agreement from time to time.
“Laws”
means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents, orders, decrees, injunctions or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“LCAT
Election” has the meaning set forth in Section 1.02(h).
“LCAT
Test Date” has the meaning set forth in Section 1.02(h).
“Lead
Arrangers” means Credit Suisse Securities (USA) LLC, Citibank, N.A., Goldman Sachs Lending Partners LLC, Morgan Stanley Senior
Funding, Inc., Deutsche Bank Securities Inc., UBS Securities LLC and Macquarie Capital (USA) Inc., in their respective capacities
as joint lead arrangers and joint bookrunners under this Agreement. With respect to Amendment No. 1,
the Lead Arrangers shall be Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Goldman Sachs Bank USA, Morgan Stanley
Senior Funding, Inc., Wells Fargo Securities, LLC, Siemens Financial Services, Inc.
and Macquarie Capital (USA) Inc. With respect to Amendment No. 2, the Lead Arrangers shall be Credit Suisse Securities (USA) LLC,
Citibank, N.A., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc. and Macquarie
Capital (USA) Inc. With respect to Amendment No. 4, the Lead Arrangers shall be the Amendment No. 4 Arrangers.
With respect to Amendment No. 5,
the Lead Arrangers shall be the Amendment No. 5 Arrangers. With respect to Amendment
No. 6, the Lead Arrangers shall be the Amendment No. 6 Arrangers. With respect to Amendment No. 8, the Lead Arrangers
shall be the Amendment No. 8 Arrangers. With respect to Amendment No. 9, the Lead Arrangers
shall be the Amendment No. 9 Arrangers.
“Lender”
has the meaning set forth in the introductory paragraph to this Agreement and, as the context requires, includes an L/C Issuer and the
Swing Line Lender, and their respective successors and assigns as permitted hereunder, each of which is referred to herein
as a “Lender”.
“Lender Default”
means (i) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender to make available
its portion of any incurrence of revolving loans or reimbursement obligations required to be made by it, which refusal or failure is
not cured within two Business Days after the date of such refusal or failure; (ii) the failure of any Lender to pay over to the
Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder within two Business Days
of the date when due, unless subject to a good faith dispute or such Lender notifies the Administrative
Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
to funding (each of which conditions precedent, together with any applicable Default, shall be specifically identified in such writing)
has not been satisfied; (iii) a Lender has notified the Borrower or the Administrative Agent that it does not intend
to comply with its funding obligations, or has made a public statement to that effect with respect to its funding obligations, under
the Revolving Credit Facility or under other agreements generally in which it commits to extend credit; (iv) a Lender has failed,
within three Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations under
the Revolving Credit Facility; (, unless such Lender
notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that
one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default, shall be specifically
identified in such writing) has not been satisfied; provided that a Lender Default under this clause (iv) shall cease to exist upon
receipt of such written confirmation by such Lender; or (v) a Lender has admitted in writing that it is insolvent or
such Lender becomes subject to a Lender-Related Distress Event; or (vi) a
Lender has become the subject of aa Bail-iIn
Action. Any determination by the Administrative Agent that a Lender Default has occurred under any one or more of clauses (i) through
(viv) above shall be conclusive and binding
absent manifest error, and the applicable Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b))
upon delivery of written notice of such determination to the Borrower, each L/C Issuer, each Swing Line
Lender and each Lender.
“Lender-Related Distress
Event” means, with respect to any Lender or any person that directly or indirectly controls such Lender (each, a “Distressed
Person”), as the case may be, a voluntary or involuntary case with respect to such Distressed Person under any Debtor Relief
Law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such
Distressed Person’s assets, or such Distressed Person or any person that directly or indirectly controls such Distressed Person
is subject to a forced liquidation, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise
adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person or its assets to
be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue
of the ownership or acquisition of any equity interests in any Lender or any person that directly or indirectly controls such Lender
by a Governmental Authority or an instrumentality thereof, so long as such ownership interest does not
result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments
or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm
any contracts or agreements made with such Lender..
“Lending Office”
means, as to any Lender, the applicable branch, office or officesAffiliate
of such Lender described as such in such Lender’s Administrative Questionnaire, or such other branch,
office or officesAffiliate as
a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit”
means any letter of credit issued hereunder. A Letter of Credit may be a commercial letter of credit or a standby letter of credit and
may be issued in any Approved Currency.
“Letter of Credit
Expiration Date” means the day that is five (5) Business Days prior to
the scheduled Maturity Date then in effect for the Newapplicable
Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit
Issuance Request” means a letter of credit request substantially in the form of Exhibit B.
“Letter of Credit Percentage”
shall mean, (x) with respect to (i) Citibank, N.A., 30.92%, (ii) Barclays Bank
PLC, 17.27%, (iii) Goldman Sachs Bank USA, 17.27%, (iv) Credit Suisse AG, Cayman Islands Branch, 17.27% and (v) HSBC Bank
USA, N.A., 17.27% (in each case as may be reduced to reflect any percentage allocated to another L/C Issuer pursuant to the immediately
succeeding clause (y)), and (y) any other Letter of Credit Issuer, a percentage to
be agreed between the Borrower and such L/C Issuer.
“Letter of Credit
Sublimit” means an amount equal to the lesser of (a) $75,000,000150,000,000
and (b) the aggregate principal amount of the Revolving Credit Commitments.
The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“Lien” means,
any mortgage, deed of trust, pledge, hypothecation, assignment by
way of security, 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 CapitalizedFinancing
Lease having substantially the same economic effect as any of the foregoing); provided that
in no event shall a Non-Financing Lease Obligation be deemed to constitute a Lien.
“Limited
Condition Acquisition” means any acquisition, including by way of merger,
amalgamation or consolidation, by one or more of the Borrower and its Restricted Subsidiaries of any
assets, business or Person permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining,
third party acquisition financing and which is designated as a Limited Condition Acquisition by the Borrower or such Restricted Subsidiary
in writing to the Administrative Agent on or prior to the date the definitive agreements for such acquisition are entered into.
“Limited
Condition Transaction” means (1) any Investment or acquisition (whether by merger, amalgamation, consolidation or other
business combination or the acquisition of Equity Interests or otherwise and which may include, for the avoidance of doubt, a transaction
that may constitute a Change of Control) or other transaction, (2) any incurrence, issuance, prepayment, redemption, repurchase,
defeasance, satisfaction and discharge or repayment of Indebtedness or Disqualified Equity Interests, (3) any Restricted Payment,
including the designation of any Restricted Subsidiary or Unrestricted Subsidiary, (4) the making of any Disposition or any fundamental
change and (5) any other transaction or plan undertaken or proposed to be undertaken in connection with any of the preceding clauses
(1) through (4).
“Loan” means
an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan,
or a Revolving Credit Loan or a Swing Line
Loan (including any Incremental Term Loan and any extensions of credit under any Revolving Commitment Increase).
“Loan Documents”
means, collectively, (i) this Agreement, (ii) Amendment No. 14,
(iii) Amendment No. 26, (iv) Amendment
No. 37, (v) Amendment No. 48,
(vi) Amendment No. 59, (vii) Amendment
No. 6, (viii) Amendment No. 7, (ix) Amendment No. 8, (x) the Notes, (xiviii)
the Collateral Documents, (xiiix) each Intercreditor
Agreement to the extent then in effect, (xiiix)
each Letter of Credit Issuance Request and (xiv) any Refinancing Amendment, Incremental
Amendment or Extension Amendment.
“Loan Parties”
means, collectively, the Borrower and each Guarantor.
“LTM
Consolidated EBITDA” means Consolidated EBITDA for the most recently ended period of four consecutive fiscal
quarters ended prior to the date of determination for which financial statements are internally available, calculated on a Pro Forma
Basis.
“Management Stockholders”
means the future, present and former members of management,
employees, directors, officers, managers, members or partners (and their Controlled Investment Affiliates and Immediate Family Members)
of Holdings, the Borrower or any of its Subsidiaries who are investors in
Holdings, the Borrower or any direct or indirect parent thereof including
any such future, present or former employees, directors, officers, managers, members or partners owning through an Equityholding Vehicle.
“Margin Stock”
has the meaning set forth in Regulation U issued by the FRB.
“Market Capitalization”
means an amount equal to (i) the total number of issued and outstanding shares of common Equity Interests of a Qualified IPO Entity
on the date of the declaration of a Restricted Payment multiplied by (ii) the arithmetic mean of the closing prices per share of
such common Equity Interests on the principal securities exchange on which such common Equity Interests are traded for the 30 consecutive
trading days immediately preceding the date of declaration of such Restricted Payment.
“Master Agreement”
has the meaning set forth in the definition of “Swap Contract.”
“Material Adverse
Effect” means a (a) material adverse effect on the business, operations, assets, liabilities (actual or contingent) or
financial condition of the BorrowerHoldings
and its Restricted Subsidiaries, taken as a whole; (b) material adverse effect on the ability of the Loan Parties (taken as a whole)
to fully and timely perform any of their payment obligations under any Loan Document to which the Borrower or any of the Loan Parties
is a party; or (c) material adverse effect on the rights and remedies available to the Lenders or any Agent under any Loan Document.
“Material
Intellectual Property” means any intellectual property owned by Holdings or any of its Restricted Subsidiaries that is material
to the business of Holdings and its Restricted Subsidiaries, taken as a whole (as reasonably determined by the Borrower).
“Material Real Property”
means any fee owned rReal pProperty
located in the United States that is owned by any Loan Party with a fair market value in excess of $7,500,000 (at the Closing Date or,
with respect to fee owned rReal
pProperty acquired after the Closing Date,
at the time of acquisition, in each case, as reasonably estimated by the Borrower in good faith).
“Maturity
Date” means (i) with respect to the Initial B-3 Dollar Term Loans, March 31, 2027,
(ii) with respect to the Initial B-4 Dollar Term Loans, November 16, 2029, (ii) with
respect to the Initial B-5 Dollar Term Loans, June 4, 2031, (iii) with respect to the New
Revolving Credit Facility, the date that is the earliest of (x) November 18,
2026,June 4, 2029 and (y) if greater than $500 million in aggregate
principal amount of the Initial B-2 Euro Term Loans is outstanding on December 31, 2023, December 31,
2023 and (z) if greater than $500 million in aggregate principal amount of the 2026 Dollar Senior Notes are outstanding
on October 16April 1, 20252029,
October 16April 1, 20252029,
(iv) with respect to any tranche of Extended Term Loans or Extended Revolving Credit Commitments, the final maturity date applicable
thereto as specified in the applicable Extension Request accepted by the respective Lender or Lenders, (v) with respect to any Refinancing
Term Loans or Other Revolving Credit Commitments, the final maturity date applicable thereto as specified in the applicable Refinancing
Amendment and (vi) with respect to any Incremental Term Loans or Incremental Revolving Credit Commitments, the final maturity date
applicable thereto as specified in the applicable Incremental Amendment; provided, in each case, that if such date is not a Business
Day, then the applicable Maturity Date shall be the next succeeding Business Day.
“Maximum Rate”
has the meaning set forth in Section 10.10.
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage Policies”
has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgaged Property”
has the meaning set forth in the definition of “Collateral and Guarantee Requirement.”
“Mortgages”
means collectively, the deeds of trust, trust deeds, deeds to secure debt, hypothecs and mortgages made by the Loan Parties in favor
or for the benefit of the Collateral Agent on behalf of the Secured Parties creating and evidencing a Lien on a Mortgaged Property in
form and substance reasonably satisfactory to the Collateral Agent and the Borrower with such
terms and provisions as may be required by the applicable Laws of the relevant jurisdiction, and any other mortgages executed and delivered
pursuant to Section 6.11, or
6.13 or 6.16, in each case, as the same may from time to time be amended, restated,
supplemented, or otherwise modified.
“Multiemployer Plan”
means any employee benefit plan of the type described in Sections 3(37) or Section 4001(a)(3) of
ERISA, to which the Borrowerany Loan Party,
any Restricted Subsidiary or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding
six years preceding the applicable date of reference, has made or been obligated
to make contributions.
“Net Proceeds”
means:
(a) 100%
of the cash proceeds actually received by the BorrowerHoldings
or any of the Restricted Subsidiaries (including any cash payments received by way of deferred payment of principal pursuant
to a note or installment receivable or purchase price adjustment receivable or otherwise and including casualty insurance settlements
and condemnation awards, but in each case only as and when received) from any Disposition or Casualty Event, net of (i) attorneys’
fees, accountants’ fees, consultants’ fees, investment banking fees, survey costs,
title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary
expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) the principal amount,
premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by a Lien (other
than a Lien that ranks pari passu with or subordinated to the Liens securing the Obligations) on the asset subject
to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or
Casualty Event (other than Indebtedness under the Loan Documents),
including, for the avoidance of doubt, ABL Debt in respect of any ABL Priority Collateral or Non-U.S.
ABL Facility Collateral subject to such Disposition or Casualty Event or otherwise subject
to an Intercreditor Agreement), (iii) in the case of any Disposition or Casualty Event by a non-wholly owned Restricted
Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iii)) attributable to minority
interests and not available for distribution to or for the account of the BorrowerHoldings
or a wholly owned Restricted Subsidiary as a result thereof, (iv) taxesany
costs associated with unwinding any related Swap Obligations in connection with such transaction, (v) Taxes (including Tax distributions
paid pursuant to Section 7.06(i)(iii)) paid or reasonably estimated to be payable as a result thereof, and (vvi)
the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities
(other than any taxes deducted pursuant to clause (i) above) (x) related to any of the applicable assets and (y) retained
by the BorrowerHoldings or any of the Restricted
Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations (however, the amount of any subsequent reduction of such reserve (other than in connection
with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such Disposition or Casualty Event occurring on
the date of such reduction); provided that if no Default exists, the Borrower may reinvest
any portion of such proceeds in assets useful for its business (which shall include any Investment permitted by this Agreement) within
1218 months of such receipt and such portion
of such proceeds shall not constitute Net Proceeds except to the extent not, within 1218
months of such receipt, so reinvested or contractually committed to be so reinvested (it being understood that if any portion
of such proceeds are not so used within such 1218-month
period but within such 1218-month period
are contractually committed to be used, then upon the termination of such contract or if such Net Proceeds are not so used within 1824
months of initial receipt, such remaining portion shall constitute Net Proceeds as of the date of such termination or expiry
without giving effect to this proviso; it being further understood that such proceeds shall constitute
Net Proceeds notwithstanding any investment notice if there is a Specified Default at the time of a proposed reinvestment unless such
proposed reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing); provided,
further, that no); provided, further, that the Borrower may retroactively elect
to deem expenditures that otherwise would be permissible as a reinvestment of proceeds in accordance with foregoing proviso that occur
prior to the receipt of the proceeds in respect of such Disposition to have been invested in accordance with the foregoing proviso (it
being agreed that such deemed expenditure shall have been made or have been committed to be made no earlier than 180 days prior to such
Disposition); provided, further, that (x) the proceeds realized in aany
single transaction or series of related transactions shall not constitute Net Proceeds
unless (x)the amount of such proceeds shall
exceed $40,000,000exceeds (and only to the extent in excess of) the greater of (1) $115,000,000
and (ii) 15% of LTM Consolidated EBITDA and (y) only the aggregate amount
of net proceeds (excludeding
under, for the avoidance of doubt, Net Proceeds
described in the preceding clause (x) in exceedss
of the greater of (i) $100,000,000230,000,000
and (ii) 30% of LTM Consolidated EBITDA in any fiscal year (and thereafter only net cash proceeds in excess of such amount
shall constitute Net Proceeds under this clause (a)), and
(b) 100%
of the cash proceeds from the incurrence, issuance or sale by the BorrowerHoldings
or any of the Restricted Subsidiaries of any Indebtedness, net of all tTaxes
(including Tax distributions paid pursuant to Section 7.06(i)(iii)) paid or reasonably
estimated to be payable as a result thereof and fees (including investment banking fees and discounts), commissions, costs and other
expenses, in each case incurred in connection with such incurrence, issuance or sale. (and,
in the case of the incurrence, issuance or sale of any Indebtedness the proceeds of which are required to be used to prepay any Class of
Loans and/or reduce any Class of Commitments under this Agreement, accrued interest and premium, if any, on such Loans and any other
amounts (other than principal) required to be paid in respect of such Loans and/or Commitments in connection with any such prepayment
and/or reduction), and payments made in order to obtain a necessary consent or as may be required by applicable Law and any relocation
costs incurred are a result of such event.
For purposes of calculating
the amount of Net Proceeds, fees, commissions and other costs and expenses payable to the BorrowerHoldings
or any Restricted Subsidiary shall be disregarded.
“New
Holdings” means Omaha Acquisition Inc., a Delaware corporation, and any entity (or combination of entities) that is a Domestic
Subsidiary of (or are Domestic Subsidiaries of) Holdings or any direct or indirect parent of Holdings that is organized
under the Laws of the United States, any state thereof or the District of Columbia and directly owns 100% of the issued and outstanding
Equity Interests in the Borrower and issues a Guaranty of the Obligations and agrees to assume the obligations of “New Holdings”
pursuant to this Agreement and the other Loan Documents pursuant to one or more instruments in form and substance reasonably satisfactory
to the Administrative Agent.
“New
Revolving Credit Borrowing” means a borrowing consisting of simultaneous New Revolving Credit Loans
of the same Type, in the same Approved Currency, and, in the case of Term SOFR Loans or RFR Loans, having the same Interest Period made
by each of the New Revolving Credit Lenders pursuant to Section 2.01(c).
“New Revolving Credit
Commitment” means, as to each New Revolving Credit Lender, its obligation to (a) make New Revolving Credit Loans to the
Borrower pursuant to Section 2.01(c), (b) purchase participations in L/C Obligations in respect of Letters of Credit and (c) purchase
participations in Swing Line Loans, in an aggregate Principal Amount at any one time outstanding not to exceed the amount set forth opposite
such Lender’s name on Schedule I to Amendment No. 5 under the caption “New Revolving Credit Commitments” or in
the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from
time to time in accordance with this Agreement (including Section 2.14). The aggregate New Revolving Credit Commitments of all New
Revolving Credit Lenders shall be $250,000,000 on the Amendment No. 5 Effective Date, as such amount may be adjusted from time to
time in accordance with the terms of this Agreement.
“New
Revolving Credit Exposure” means as to each New Revolving Credit Lender,
the sum of the amount of the outstanding Principal Amount of such New Revolving Credit Lender’s
New Revolving Credit Loans and its Pro Rata Share or other applicable share provided for under this
Agreement of the amount of the L/C Obligations and the Swing Line Obligations at such time.
“New
Revolving Credit Facility” means, at any time, the aggregate amount of the
New Revolving Credit Commitments at such time.
“New Revolving Credit
Lender” means (a) as of the Amendment No. 5 Effective Date, each Revolving Credit Lender with respect to any Revolving
Credit Commitment of such Lender that has been extended pursuant to Amendment No. 5 and whose name and the aggregate principal amount
of its Revolving Credit Commitment so extended are set forth on Schedule I to Amendment No. 5 under the caption “New Revolving
Credit Commitment” and (b) after the Amendment No. 5 Effective Date, each Lender that holds a New Revolving Credit Commitment.
“New Revolving Credit
Loan” shall have the meaning provided in Section 2.01(c).
“Non-Consenting Lender”
has the meaning set forth in Section 3.07(d).
“Non-Debt Fund Affiliate”
means any Affiliate of the InvestorsBorrower
other than (a) Holdings or any Subsidiary of Holdings, (b) any Debt Fund Affiliates and (c) any natural person.
“Non-Defaulting Lender”
means, at any time, a Lender that is not a Defaulting Lender.
“Non-Expiring
Credit Commitment” has the meaning set forth in Section 2.04(g).
“Non-Extension Notice
Date” has the meaning set forth in Section 2.03(b)(iii).
“Non-U.S. ABL Facility
Collateral” has the meaning given to such term in the ABL Intercreditor Agreement.
“Non-Financing
Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both
the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance
of doubt, a straight-line or operating lease shall be considered a Non-Financing Lease Obligation.
“Not Otherwise Applied”
means, with reference to any amount of proceeds of any transaction or event, that such amount (a) was not required to be applied
to prepay the Loans pursuant to Section 2.05(b), (b) was not previously (and is not concurrently being) applied
in determining the permissibility of a transaction under the Loan Documents where such permissibility was or is (or may have been) contingent
on receipt of such amount or utilization of such amount for a specified purpose, (c) was not utilizedused
to make Investments pursuant to Sections 8.05,
(7.02(n), (p), (v), (w), (y) or (z), (d) was not applied
to incur Indebtedness pursuant to Section 7.03(m)(y), (e) was not utilized toused
to make Restricted Payments pursuant to Section 7.06 (other than pursuant to Section 7.06(h)(y)), (fe)
was not utilized to make Investments pursuant to Sections 7.02(n), (p), (v), (w) or (z), (g) was
not utilizedused to make prepayments of any
Junior Financing, redemptions, purchases, defeasances or other payments pursuant
to Section 7.137.10 (other than
7.13Section 7.10(a)(iv)(y)) or,
(hf) was not utilized to increase
availability under clause (cd) of the definition
of Cumulative Credit or (g) was not utilized pursuant to Section 8.05. The Borrower
shall promptly notify the Administrative Agent of any application of such amount as contemplated by clause
(b) above.
“Note” means
a Term Note, or a Revolving Credit Note
or a Swing Line Note, as the context may require.
“Notice
of Intent to Cure” has the meaning set forth in Section 8.05(a).
“Obligations”
means all (x) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Restricted Subsidiaries
arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Loan Party or Restricted Subsidiary of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding
and (y) obligations of any Loan PartyHoldings or
any Restricted Subsidiary arising under any Secured Hedge Agreement or any Treasury Services Agreement. Without limiting the
generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Restricted Subsidiaries to the
extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal,
interest, Letter of Credit fees, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable
by any Loan Party under any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of any of
the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party. Notwithstanding the
foregoing, at the option of the Borrower, the obligations of the Borrower or any Restricted
Subsidiary under any Secured Hedge Agreement or any Treasury Services Agreement shall be secured and guaranteed pursuant to the Collateral
Documents and the Guaranty, but only to the extent that, and for so long as, the other Obligations
are so secured and guaranteed. Notwithstanding the foregoing, Obligations of any Guarantor shall in no event include any Excluded Swap
Obligations of such Guarantor.
“OFAC” means
the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offered Amount”
has the meaning set forth in Section 2.05(a)(v)(D)(1).
“Offered Discount”
has the meaning set forth in Section 2.05(a)(v)(D)(1).
“OID” means
original issue discount.
“Organizational
Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation
or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization
with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or
articles of formation or organization of such entity.
“Original Credit Agreement”
means this Credit Agreement as in effect immediately prior to the Amendment No. 6 Effective Date.
“Other Applicable
Indebtedness” has the meaning set forth in Section 2.05(b)(ii).
“Other Debt Representative”
means, with respect to any series of Permitted First Priority Refinancing Debt or Permitted Junior Lien
Refinancing DebtIndebtedness permitted to be incurred hereunder on an equal priority
basis (but without giving effect to the control of remedies) or junior lien basis to the Lien securing the Obligations, the
trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such
Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
“Other Revolving Credit
Commitments” means one or more Classes of revolving credit commitments hereunder that result from a Refinancing Amendment.
“Other Revolving Credit
Loans” means one or more Classes of Revolving Credit Loans that result from a Refinancing Amendment.
“Other Taxes”
has the meaning set forth in Section 3.01(b).
“Outstanding Amount”
means (a) with respect to the Term Loans, and
Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding Principal
Amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans (including any
refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and
Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any
date, the aggregate outstanding Principal Amount thereof on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a
Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such
date.
“Overnight Rate”
means, for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in an Approved Foreign Currency, the rate of interest per annum at which overnight deposits in such currency, in an
amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch
or Affiliate of the Administrative Agent in the applicable offshore interbank market for such currency to major banks in such interbank
market.
“Participant”
has the meaning set forth in Section 10.07(f).
“Participant Register”
has the meaning set forth in Section 10.07(f).
“Participating Lender”
has the meaning set forth in Section 2.05(a)(v)(C)(2).
“Participating Member
State” means any member state of the European Union that has the euro as its lawful currency in accordance with legislation
of the European Union relating to Economic and Monetary Union.
“Payment
Notice” has the meaning set forth in Section 9.16(b).
“Payment
Recipient” has the meaning set forth in Section 9.16(a).
“PBGC” means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing
similar functions.
“Pension Plan”
means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan
Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described
in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding six years.
“Perfection Certificate”
means a certificate in the form of Exhibit H hereto or any other form reasonably approved by the Collateral Agent, as the
same shall be supplemented from time to time.
“Periodic Term SOFR
Determination Day” has the meaning set forth in the definition of “Term SOFR”.
“Permitted Acquisition”
has the meaning set forth in Section 7.02(i).
“Permitted
Earlier Maturity Indebtedness Exception” means, with respect to the incurrence of any Incremental Term Loans,
Credit Agreement Refinancing Indebtedness and any Indebtedness incurred under Sections 7.03(g) (to the extent incurred but
not assumed), (q) or (w) permitted to be incurred hereunder, such Indebtedness (a) up to an aggregate principal
amount of the greater of (i) $375,000,000 and (ii) 50% of LTM Consolidated EBITDA, in each case determined at the time of incurrence
of such Indebtedness, (b) incurred pursuant to the Incremental Reallocated General Debt Amount, or (c) consisting of a customary
bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies
the applicable maturity requirements and such conversion or exchange is subject only to conditions customary for similar conversions
or exchanges, or constituting term “a” loan facilities (as determined by the Borrower in good faith) (collectively, the “Specified
Debt”), may, in each case, have a maturity date that is earlier than and a Weighted Average Life to Maturity that is shorter
than, the Indebtedness with respect to which the Specified Debt is otherwise required to have a later maturity date.
“Permitted
First Lien Ratio Debt” has the meaning set forth in the definition of “Permitted Ratio Debt”.
“Permitted First Priority
Refinancing Debt” means any Permitted First Priority Refinancing Notes and any Permitted First Priority Refinancing Loans.
“Permitted First Priority
Refinancing Loans” means any Credit Agreement Refinancing Indebtedness in the form of secured loans incurred by the
BorrowerHoldings and/or any Restricted Subsidiary in the form of one or more
tranches of loans not under this Agreement; provided that (i) such Indebtedness
is secured by the Collateral on a pari passuan
equal priority basis (but without regard to the control of remedies) with the Liens securing the Obligations and is not secured
by any property or assets of Holdings, the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness
is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors or,
(iii) subject to the Permitted Earlier Maturity Indebtedness Exception, such
Indebtedness does not mature on or prior to the date that is the Latest Maturity Date
at the time such Indebtedness is incurred or issued or have a shorter wWeighted
aAverage lLife
to mMaturity than the Initial Term Loans.
and (iv) an Other Debt Representative acting on behalf of the holders of such Indebtedness
shall have become party to each applicable Intercreditor Agreement then in effect or that will be in effect at the time of incurrence
of such Indebtedness.
“Permitted First Priority
Refinancing Notes” means any Credit Agreement Refinancing Indebtedness in the form of secured Indebtedness (including any Registered
Equivalent Notes) incurred by the BorrowerHoldings and/or
any Restricted Subsidiary in the form of one or more series of senior secured notes (whether
issued in a public offering, Rule 144A, private placement or otherwise); provided that (i)such Indebtedness is
secured by the Collateral on a pari passuan equal
priority basis (but without regard to the control of remedies) with the Liens securing the Obligations and is not secured
by any property or assets of Holdings, the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such Indebtedness
is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (iii) subject
to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness does not mature or have scheduled amortization
or payments of principal (other than customary offers to repurchase upon a change of control, asset sale or event of loss and a customary
acceleration right after an event of default) on or prior to the date that is the Latest
Maturity Date at the time such Indebtedness is incurred or issued, and
(iv) the security agreements relating to such Indebtedness are substantially the same
as or more favorable to the Loan Parties than the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative
Agent) and (v) an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become
party to each applicable Intercreditor Agreement then in effect
or that will be in effect at the time of incurrence of such Indebtedness. Permitted First Priority Refinancing DebtNotes
will include any Registered Equivalent Notes issued in exchange therefor.
“Permitted Holders”
means each of (xa) the Investors and,
(yb) the Management Stockholders
(provided that if theand any Affiliates thereof
(including any Management Stockholders own beneficially or of record more than fifteen percent
(15%) of the outstanding voting stock of Holdings I in the aggregate, they shall be treated as Permitted Holders of only fifteen percent
(15%) of the outstanding voting stock of Holdings I at such time).holding Equity Interests
through an Equityholding Vehicle), (c) any Person who is acting solely as an underwriter in connection with a public or private
offering of Equity Interests of the Borrower or any of its direct or indirect parent companies, acting in such capacity, (d) any
group (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Closing Date)) of which any of the
foregoing, any Holding Company, Permitted Plan or any Person or group that becomes a Permitted Holder and any member of such group; provided
that in the case of such group and without giving effect to the existence of such group or any other group, Persons referred to in clauses
(a) through (c), collectively, have beneficial ownership of more than 50% of the total voting power of the issued and outstanding
Equity Interests of the Borrower or any of its direct or indirect parent companies held by such group, (e) any Holding Company and
(f) any Permitted Plan.
“Permitted Intercompany
Activities” means any transactions (A) between or among the
BorrowerHoldings and/or its Restricted
Subsidiaries that are entered into in the ordinary course of business of the BorrowerHoldings
and its Restricted Subsidiaries and, in the good faith judgment of the
BorrowerHoldings are necessary or advisable in connection with the ownership
or operation of the business of the BorrowerHoldings
and its Restricted Subsidiaries, including, but not limited to, (i) payroll,
cash management, purchasing, insurance and hedging arrangements and (ii) management, technology and licensing arrangements,
(B) between or among Holdings, its Restricted Subsidiaries and/or any captive insurance subsidiaries or (C) constituting any
Permitted Tax Restructuring.
“Permitted Junior
Lien Refinancing Debt” means Credit Agreement Refinancing Indebtedness constituting secured Indebtedness (including any Registered
Equivalent Notes) incurred by the BorrowerHoldings and/or
any Restricted Subsidiary in the form of one or more series of junior lien secured notes or junior lien secured loans; provided
that (i) notwithstanding any provision to the contrary contained in the definition of “Credit
Agreement Refinancing Indebtedness”, such Indebtedness is secured by the Collateral on a junior priority basis to the
Liens securing the Obligations and the obligations in respect of any Permitted First Priority Refinancing Debt and is not secured by
any property or assets of Holdings, the Borrower or any Restricted Subsidiary other than the Collateral, (ii) such
Indebtedness may be secured by a Lien on the Collateral that is junior to the Liens securing the Obligations and the obligations in respect
of any Permitted First Priority Refinancing Debt, notwithstanding any provision to
the contrary contained in the definition of “Credit Agreement Refinancing Indebtedness,”
(iii) an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party
to the Junior Lieneach applicable Intercreditor
Agreement as a “Junior Lien Representative” thereunder and the ABL Intercreditor Agreementthen
in effect or that will be in effect at the time of incurrence of such Indebtedness, and (iviii)
such Indebtedness meets the Permitted Other Debt Conditions. Permitted Junior Lien Refinancing Debt will include any Registered Equivalent
Notes issued in exchange therefor.
“Permitted
Junior Secured Ratio Debt” has the meaning set forth in the definition of “Permitted Ratio Debt”.
“Permitted Other Debt
Conditions” means that such applicable Indebtedness (i) subject to the Permitted Earlier
Maturity Indebtedness Exception, does not mature or have scheduled amortization payments of principal or payments of principal
and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (except customary asset sale or change
of control provisions that provide for the prior repayment in full of the Loans and all other Obligations), in each case on or prior
to the Latest Maturity Date at the time such Indebtedness is incurred, and
(ii) is not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors,
and (iii) to the extent secured, the security agreements relating to such Indebtedness are substantially the same as or more favorable
to the Loan Parties than the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent)..
“Permitted
Plan” means any employee benefit plan of Holdings or any of its Affiliates (including any Equityholding Vehicle) and any Person
acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Permitted Ratio Debt”
means Indebtedness of the BorrowerHoldings
or any Restricted Subsidiary so long as immediately after giving Pro Forma Effect thereto and to the use of the proceeds thereof (but
without netting the proceeds thereof) (i) no Event of Default shall be continuing or result therefrom
and (ii) (x) if such Indebtedness is secured on a pari passu basisby
the Collateral on an equal priority basis (without giving effect to the control of remedies) with the Liens securing the Obligations,
the Consolidated First Lien Net Leverage Ratio is no greater than either (I) 4.75 to
1.00 or (II) in the case of any such Indebtedness being applied to finance a Permitted Acquisition
or other permitted Investment, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness
and any consummation of related transactions, in each case, determined on a Pro Forma Basis as of the last day of the most
recently ended period of four consecutive fiscal quarters for which financial statements are internally available and(“Permitted
First Lien Ratio Debt”), (y) if such Indebtedness is secured by the Collateral
on a junior lien basis to the Liens securing the ObligationsInitial
Term Loans, the Consolidated Secured Net Leverage Ratio is no greater than either (I) 6.00
to 1.00 or (II) in the case of any such Indebtedness being applied to finance a Permitted Acquisition
or other permitted Investment, the Consolidated Secured Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and
the consummation of any related transactions, in each case, determined on a Pro Forma Basis as of the last day of the most
recently ended period of four consecutive fiscal quarters for which financial statements are internally available;
provided that (“Permitted Junior Secured Ratio Debt”) and (z) if
such Indebtedness is unsecured (or secured by assets that do not constitute Collateral), either (I) the Consolidated Interest Coverage
Ratio is no less than either (A) 2.00 to 1.00 or (B) in the case of any such Indebtedness being applied to finance a Permitted
Acquisition or other permitted Investment, the Consolidated Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness
and the consummation of any related transactions or (II) the Consolidated Total Net Leverage Ratio is no greater than either (A) 6.25
to 1.00 or (B) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other permitted Investment,
the Consolidated Total Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and the consummation of any related
transactions, in each case, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive
fiscal quarters for which financial statements are internally available (“Permitted Unsecured Ratio Debt”); provided
that, subject to the Permitted Earlier Maturity Indebtedness Exception, such Indebtedness shall (A) in the case of
clause (x) above, have a maturity date that is on or after the Latest Maturity Date at
the time such Indebtedness is incurred, and in the case of clause (y) or
(z) above, have a maturity date that is at least ninety-one (91) days
after the Latest Maturity Date) at the time such Indebtedness is incurred, (B) in the
case of clause (x) above, have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life
to Maturity of the Facilities and, in the case of clause (y) or (z) above, shall
not be subject to scheduled amortization prior to maturity, (C) if such Indebtedness is incurred or guaranteed on a secured basis
by a Loan Party on a junior basis to the Liens securing the Obligations, be subject to the Junior Lien,
an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to each applicable
Intercreditor Agreement and, if the Indebtedness is secured on a pari passu
basis with the Liens securing the Obligations, be (x) in the form of
debt securities and (y) subject to the First Lien Intercreditor Agreementthen in
effect or that will be in effect at the time of incurrence of such Indebtedness and (D) have terms and conditions (other
than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions)that
in the good faith determination of the Borrower are not materially less favorable (when taken as a whole)
to the Borrower than the terms and conditions of the Loan Documents (when taken as a whole) (provided that a certificate of the
Borrower as to the satisfaction of the conditions described in this clause (D) delivered at least five (5) Business Days prior
to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such
Indebtedness or drafts of documentation relating thereto, stating that the Borrower has determined in good faith that such terms and
conditions satisfy the foregoing requirements of this clause (D), shall be conclusive unless the Administrative Agent notifies the
Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis
upon which it disagrees)); provided, further, that any such Indebtedness incurred pursuant to clauses (x) or (y) above
by a Restricted Subsidiary that is not a Loan Party, together with any Indebtedness incurred by a Restricted Subsidiary that is not a
Loan Party pursuant to Sections 7.03(g), 7.03(q), 7.03(u) or 7.03(w), does not exceed in the aggregate at any time outstanding
the greater of (i) $165,000,000 and (ii) 2.25% of Total Assets, in each case determined at the time of incurrence.that
are otherwise as agreed between the Borrower and the lender, holder or other provider of such Indebtedness.
“Permitted Refinancing”
means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement or extension of any Indebtedness of
such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount
(or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed, replaced or extended except by an
amount equal to 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, unless
otherwise permitted under any basket or exception under Section 7.03 (with such amounts being deemed utilization of the applicable
basket or exception under Section 7.03), (b) other than with respect to a Permitted Refinancing in respect of Indebtedness
permitted pursuant to Section 7.03(e) and subject to the Permitted Earlier Maturity Indebtedness
Exception, such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal
toon
or lafter
than the final maturity date of, and except
for revolving Indebtedness has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (c) other
than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e), at the time thereof,
no Event of Default shall have occurred and be continuing and (d) if
such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is Junior Financing, (i) to the extent such
Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations,
such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on
terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced,
refunded, renewed, replaced or extended, and
(ii) such modification, refinancing, refunding, renewal, replacement or extension is incurred by the Person who is the obligor
of the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended and (iiid)
if the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended was subject to an Intercreditor Agreement, the
holders of such modified, refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or their
representative on their behalf shall become party to suchthe
appropriate Intercreditor Agreement(s).
“Permitted
Tax Restructuring” means any reorganizations and other transactions entered into among the Borrower (or any direct or
indirect parent entity thereof) and/or its Restricted Subsidiaries for tax planning (as determined by the Borrower in good faith) so
long as such reorganizations and other transactions do not impair the value of the Loan Documents and the Guarantees, taken as a whole,
in any material respect.
“Permitted
Unsecured Ratio Debt” has the meaning set forth in the definition of “Permitted Ratio Debt”.
“Permitted Unsecured
Refinancing Debt” means Credit Agreement Refinancing Indebtedness in the form of unsecured Indebtedness (including any Registered
Equivalent Notes) incurred by the BorrowerHoldings
and/or any Restricted Subsidiary in the form of one or more series of senior unsecured notes or loans; provided that such Indebtedness
(i) constitutes otherwise
satisfies the requirements set forth in the definition of “Credit Agreement Refinancing Indebtedness”
and (ii) meets the Permitted Other Debt Conditions. Permitted
Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
“Plan” means
any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA,
but excluding any Multiemployer Plan) sponsored, maintained or contributed to by any Loan Party or, with respect to any such plan
that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Platform”
has the meaning set forth in Section 6.02.
“Pledged Debt”
has the meaning set forth in the Security Agreement.
“Pledged Equity”
has the meaning set forth in the Security Agreement.
“Post-Acquisition
Period” means, with respect to any Permitted Acquisition or the conversion of any Unrestricted Subsidiary into a Restricted
Subsidiary, the period beginning on the date such Permitted Acquisition or conversion is consummated and ending on the firstthirty-six
month anniversary of the date on which such Permitted Acquisition or conversion is consummated.
“primary
obligor” has the meaning set forth in the definition of “Guarantee”.
“Prime Rate”
means the rate of interest per annum determined from time to time by Credit SuisseUBS
AG, Cayman Islands Branch, as its prime rate in effect at its principal office
in New York City and notified to the Borrower.
“Principal Amount”
means (i) the stated or principal amount of each Dollar Denominated Loan or Dollar Denominated Letter of Credit or L/C Obligation
with respect thereto, as applicable, and (ii) the Dollar Equivalent of the stated or principal amount of each Foreign Currency Denominated
Loan and Foreign Currency Denominated Letter of Credit or L/C Obligation with respect thereto, as the context may require.
“Pro Forma Adjustment”
means, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to
the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of the
Borrower, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected
by the Borrower in good faith as a result of (a) actions taken or
initiated, actions with respect to which substantial steps have
been taken or initiated or actions that are
expected to be taken or initiated during such Post-Acquisition
Period for the purposes of realizing reasonably identifiable and factually supportable“run
rate” cost savings,
operating expense reductions and synergies or (b) any additional costs incurred during such Post-Acquisition Period, in each
case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with
the operations of the BorrowerHoldings
and the Restricted Subsidiaries; provided,
that (i) at the election of the Borrower, such Pro Forma Adjustment shall not be required to be determined for any Acquired
Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in connection with such acquisition
was less than $25,000,000,50,000,000
and (ii) so long as such actions are taken during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition
Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA,
as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Test Period, or such additional
costs, as applicable, will be accrued
or incurred during the entirety of such Test Period; provided, further, that any such pro forma increase
or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or
additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period.
“Pro Forma Basis,”
“Pro Forma Compliance” and “Pro Forma Effect” mean, with respect to compliance with any test hereunder,
that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the
following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement
in such test: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified
Transaction, (i) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of the
BorrowerHoldings
or any division, product line, or facility used for operations of the BorrowerHoldings
or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in
the definition of “Specified Transaction,”,
shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by the
BorrowerHoldings
or any of the Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have
an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would
be in effect with respect to such Indebtedness as at the relevant date of determination; provided that (I) without limiting the
application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments may be applied to any such test
solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including
operating expense reductions) that are (as determined by the Borrower in good faith) (i) (x) directly attributable to such
transaction, and
(y) expected to have a continuing impact on the BorrowerHoldings
and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise
consistent with the definition of Pro Forma Adjustment; (II) that when calculating the Consolidated First Lien Net Leverage Ratio
for purposes of (i) the definitions
of “Applicable Rate,” and
“Commitment Fee Rate” and (ii) the Applicable ECF Percentage and (iii) determining
actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with Section 7.11, the events that
occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect; and
(III) when
calculating the Consolidated First Lien Net Leverage Ratio for purposes of the Applicable ECF Percentage or Applicable Asset Sale Percentage,
such percentage shall be calculated giving pro forma effect to any prepayment to be made pursuant to Section 2.05(b)(i) or
Section 2.05(b)(ii), as applicable, in connection with such calculation and any other Indebtedness prepaid subsequent to the end
of the applicable Test Period and on or prior to such date of determination; and (IV) in determining Pro Forma Compliance
with the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage
Ratio, the Consolidated
Interest Coverage Ratio or any other incurrence test (other than in respect of Section 7.11,
the definition of “Applicable Rate” and the definition of “Commitment Fee Rate”), in connection with
the incurrence (including by assumption or guarantee) of any Indebtedness,
(i) the incurrence of any Indebtedness in respect of the Revolving Credit Facility, any Incremental Revolving Facility or any other
revolving credit facility immediately prior to or in connection therewith included in the Consolidated First Lien Net Leverage
Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage Ratio,
the Consolidated Interest Coverage Ratio or such other incurrence test calculation immediately prior to, or simultaneously with,
the event for which the Pro Forma Compliance determination of such ratio or other test is being made shall
be disregarded; provided, further, that with respect to any incurrence of Indebtedness permitted by the provisions of this
Agreement in reliance on the pro forma calculation of the Consolidated First Lien
Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Net Leverage
Ratio or such other incurrence test calculation, any Indebtedness being incurred (or expected to be incurred) substantially simultaneously
or contemporaneously with the incurrence of any such Indebtedness or any applicable transaction or action in reliance on any “basket”
set forth in this Agreement (including the Incremental Base Amount and any “baskets” measured as a percentage of Total Assets
or Consolidated EBITDA) and
(ii) the incurrence under the Revolving Credit Facility, any Incremental Revolving Facility or under any other revolving facility
used to finance working capital needs of Holdings and its Restricted Subsidiaries (as
reasonably determined by the Borrower), in each case, shall
be disregarded. In the event any fixed “baskets” are intended to be utilized together with any incurrence-based “baskets”
within the same covenant in a single transaction or series of related transactions (including
utilization of the Free and Clear Incremental Amount and the Incurrence-Based Incremental Amount), (i) compliance with or satisfaction
of any applicable financial ratios or tests for the portion of Indebtedness or any other applicable transaction or action to be incurred
under any incurrence-based “baskets” shall first be calculated without giving effect to amounts being utilized pursuant to
any fixed “baskets”, but giving full pro forma effect to all applicable and related transactions (including, subject to the
foregoing with respect to fixed “baskets”, any incurrence and repayments of Indebtedness) and all other permitted Pro Forma
Adjustments (except that (i) the
incurrence of any Indebtedness under
the Revolving Credit Facility (including any Incremental Revolving Facility) or any other revolving credit facility immediately prior
to or in connection therewith and
(ii) the incurrence of any Indebtedness under the Revolving Credit Facility (including any Incremental Revolving Facility) or any
other revolving credit facility used to finance working capital needs of Holdings and its Restricted Subsidiaries (as reasonably determined
by the Borrower), in each case, shall be disregarded (other
than in respect of Section 7.11, the definition of “Applicable Rate” and the definition of “Commitment Fee Rate”)),
and (ii) thereafter, incurrence of the portion of such Indebtedness or other applicable transaction or action to be incurred under
any fixed “baskets” shall be calculated. Whenever
Pro Forma Effect is to be given to a pro forma event, the pro forma calculations shall be made in good faith by a
Responsible Officer of the Borrower and, notwithstanding anything
to the contrary herein, so long as an action was taken (or not taken) in reliance upon a basket, ratio or test under this Agreement that
was calculated or determined in good faith by a Responsible Officer of the Borrower based upon financial information available to such
officer at such time and such action (or inaction) was permitted under this Agreement at the time of such calculation or determination,
any subsequent restatement, modification or adjustments made to such financial information (including any restatement, modification or
adjustment that would have caused such basket, ratio or test to be exceeded as a result of such action or inaction) shall not result
in any Default or Event of Default under this Agreement.
“Pro
Forma Financial Statements” means a pro forma consolidated balance sheet and related pro forma consolidated statement of income
of the Borrower and its Restricted Subsidiaries as of and for the twelve-month period ending on the last
day of the most recently completed four-fiscal quarter period covered by the Audited Financial Statements
and the Unaudited Financial Statements, prepared in good faith after giving effect to the Transactions as if the Transactions had occurred
as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements).
“Pro Rata Share”
means, with respect to each Lender, at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator
of which is the amount of the Commitments and, if applicable and without duplication, Term Loans of such Lender under the applicable
Facility or Facilities at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility
or Facilities and, if applicable and without duplication, Term Loans under the applicable Facility or Facilities at such time; provided
that, in the case of the Revolving Credit Facility, if such Commitments have been terminated, then the Pro Rata Share of each Lender
shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof.
“Projections”
has the meaning set forth in Section 6.01(c).
“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” means any Person with a class or series of Equity Interests that is traded on the New York Stock Exchange, the NASDAQ,
the Luxembourg Stock Exchange, the London Stock Exchange, the Hong Kong Stock Exchange, The International Stock Exchange or any comparable
stock exchange or similar market.
“Public
Company Costs” means costs relating to compliance with the provisions of the Securities Act and the Exchange Act, in each case
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’ compensation, fees and expense reimbursement, costs 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 related to the foregoing.
“Public Lender”
has the meaning set forth in Section 6.02.
“Purchase Agreement”
mean that certain Share Purchase Agreement, dated April 4, 2014 (together with all exhibits and schedules thereto).
“Purchase
Agreement Representations” means the representations and warranties made by the Company in the Purchase Agreement as
are material to the interests of the Lenders, but only to the extent that the Borrower (or the Borrower’s applicable Affiliates)
have the right (taking into account any applicable cure provisions) to terminate the Borrower’s (or such Affiliates’) obligations
under the Purchase Agreement, or to decline to consummate the Acquisition (in each case, in accordance with the terms thereof), as a
result of a breach of such representations and warranties.
“QFC”
has the meaning set forth in Section 10.25(b).
“QFC
Credit Support” has the meaning set forth in Section 10.2410.25.
“Qualified ECP Guarantor”
means, in respect of any Swap Obligation, each Guarantor that, at the time the relevant Guaranty (or grant of the relevant security interest,
as applicable) becomes or would become effective with respect to such Swap Obligation, has total assets exceeding $10,000,000 or otherwise
constitutes an “eligible contract participant” under the Commodity Exchange Act and which may cause another person to qualify
as an “eligible contract participant” with respect to such Swap Obligation at such time by entering into an agreement pursuant
to the Commodity Exchange Act.
“Qualified Equity
Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Qualified IPO”
means the issuance by Holdings I or any direct or indirect parent of Holdings (such entity a “Qualified IPO Entity”)
of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement
on Form S-8) pursuant to an effective registration statement filed with the U.S. Securities and Exchange Commission in accordance
with the Securities Act (whether alone or in connection with a secondary public offering).
“Qualified IPO Entity”
has the meaning set forth in the definition of “Qualified IPO”.
“Qualified Proceeds”
means the fair market value of assets that are used or useful in, or Equity Interests of any Person engaged in, a Similar Business.
“Qualified
Securitization Facility” means any Securitization Facility (a) constituting a securitization financing facility that meets
the following conditions: (i) the board of directors or management of Holdings or the Borrower shall have determined in good faith
that such Securitization Facility is in the aggregate economically fair and reasonable to the Borrower, and (ii) all sales and/or
contributions of Securitization Assets and related assets to the applicable Securitization Subsidiary are made at fair market value (as
determined in good faith by the Borrower) or (b) constituting a receivables
or payables financing or factoring facility.
“Qualifying Lender”
has the meaning set forth in Section 2.05(a)(v)(D)(3).
“Rating Agencies”
means Moody’s and,
S&P and Fitch.
“Real Property”
means, collectively, all right, title and interest (including any fee,
easement, leasehold,
license, mineral or other estate) in and to any and all parcels of or interests in real property owned,
used or leased by any Person, whether by lease,
easement, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto,
all improvements and appurtenant fixtures and equipment thereon,
all general intangibles and contract rights and other property and rights incidental to the ownership, lease,
use or operation thereof.
“Refinanced Debt”
has the meaning set forth in the definition of “Credit
Agreement Refinancing Indebtedness”.
“Refinancing”
means the repayment in full of all third party Indebtedness of the Borrower and its Subsidiaries existing prior to the consummation of
the Transactions (other than existing ordinary course working capital facilities and ordinary course capital leases, purchase money debt
and equipment financings and any Indebtedness of the Borrower and its Subsidiaries set forth on Schedule 7.03(b))
with the proceeds of the Initial Dollar Term Loans, Initial Euro Term Loans, a portion of the Revolving Credit Facility, a portion
of the loans available under the ABL Credit Agreement, the Senior Notes and the termination and release of all commitments, security
interests and guarantees in connection therewith.
“Refinancing Amendment”
means an amendment to this Agreement (i) executed
by each of (a) the Borrower, (b) the Administrative AgentHoldings,
(c) each Additional Refinancing Lender and (d) each Lender that agrees to provide any portion of Refinancing Term Loans, Other
Revolving Credit Commitments or Other Revolving Credit Loans incurred pursuant thereto, in accordance with Section 2.15 and
(ii) acknowledged by the Administrative Agent; provided that failure to obtain such acknowledgement shall in no way affect the effectiveness
of any Refinancing Amendment.
“Refinancing Series”
means all Refinancing Term Loans, Refinancing Term Commitments, Other Revolving Credit Commitments or Other Revolving Credit Loans that
are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment
expressly provides that the Refinancing Term Loans, Refinancing Term Commitments, Other Revolving Credit Commitments or Other Revolving
Credit Loans provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the
same EffectiveAll-In
Yield and, in the case of Refinancing Term Loans or Refinancing Term Commitments, amortization schedule.
“Refinancing Term
Commitments” means one or more Classes of Term Commitments hereunder that are established to fund Refinancing Term Loans of
the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.
“Refinancing Term
Loans” means one or more Classes of Term Loans hereunder that result from a Refinancing Amendment.
“Register”
has the meaning set forth in Section 10.07(d).
“Registered Equivalent
Notes” means, with respect to any notes originally issued in an offering pursuant to Rule 144A under the Securities Act
or other private placement transaction under the Securities Act of 1933, substantially
identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered
with the SEC.
“Release”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migrating in into, onto or through
the Environment.
“Replacement Event”
has the meaning specified in the definition of “Term SOFR”.
“Relevant Screen Rate”
means (i) with respect to any SONIA Rate Borrowing denominated in Sterling, the SONIA Rate, (ii) with respect to any Borrowing
denominated in Japanese Yen, the TIBOR Screen Rate and (iii) with respect to any Borrowing denominated in Euros, the EURIBOR Screen
Rate.
“Replacement
Event” has the meaning specified in the definition of “Term SOFR”.
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder with
respect to a Pension Plan, other than events for which the thirty (30) day notice period has been waived.
“Repricing Initial
B-4 Dollar Term Loans Transaction” means the prepayment, refinancing, substitution or replacement of all or a
portion of the Initial B-4 Dollar Term Loans with the incurrence by the Borrower or any Restricted Subsidiary of any syndicated term
loan financing in the same currency having an effective interest cost or weighted average yield (with the comparative determinations
to be made by the Administrative Agent consistent with generally accepted financial practices, after giving effect to, among other factors,
margin, interest rate floors, upfront or similar fees or original issue discount, but excluding the effect of any arrangement, structuring,
syndication or other fees payable to any lead arranger (or its affiliates) in connection with the commitment or syndication of such syndicated
term loan financing, and without taking into account any fluctuations in Term SOFR) that is less than the effective interest cost or
weighted average yield (as determined by the Administrative Agent on the same basis) of such Initial B-4 Dollar Term Loans so repaid,
refinanced, substituted or replaced, including without limitation, as may be effected through any amendment to this Agreement relating
to the interest rate for, or weighted average yield of, such Initial B-4 Dollar Term Loans or the incurrence of any Rreplacement
Tterm
Lloans,
in each case the primary purpose of which was to reduce such effective interest cost or weighted average yield and other than in connection
with a Change of Control, Qualified IPO or Transformative AcquisitionTransaction.
“Repricing
Initial B-5 Dollar Term Loans Transaction” means the prepayment, refinancing, substitution or replacement of all or a portion
of the Initial B-5 Dollar Term Loans with the incurrence by the
Borrower or any Restricted Subsidiary of any broadly marketed or
syndicated term “b” loan financing in the same currency secured by liens on the Collateral that rank on an equal priority
basis (without giving effect to the control of remedies) with the liens on the Collateral securing the Obligations having an effective
interest cost or weighted average yield (with the comparative determinations to be made by the Administrative Agent consistent with generally
accepted financial practices, after giving effect to, among other factors, margin, interest rate floors, upfront or similar fees or original
issue discount, but excluding the effect of any arrangement, structuring, syndication or
other fees payable to any lead arranger (or its affiliates) in connection with the commitment or syndication of such broadly
marketed or syndicated term “b” loan financing, and without taking into account any fluctuations in Term SOFR) that is less
than the effective interest cost or weighted average yield (as determined by the Administrative Agent on the same basis) of such Initial
B-5 Dollar Term Loans so repaid, refinanced, substituted or replaced, including without limitation, as may be effected through any amendment
to this Agreement relating to the interest rate for, or weighted average yield of, such Initial B-5 Dollar Term Loans or the incurrence
of any replacement term loans, in each case the primary purpose of which was to reduce such effective interest cost or weighted average
yield and other than in connection with a Change of Control or Transformative Transaction.
“Repricing
Transaction” means, collectively, Repricing Initial B-4 Dollar Term Loans Transaction and Repricing Initial B-5 Dollar Term
Loans Transaction.
“Request for Credit
Extension” means (a) with respect to a Borrowing, continuation or conversion of Term Loans or Revolving Credit Loans,
a Committed Loan Notice, and
(b) with respect to an L/C Credit Extension, a Letter of Credit Issuance Request, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Class Lenders”
means, with respect to any Class on any date of determination, Lenders having more than 50% of the sum of (i) the outstanding
Loans under such Class and (ii) the aggregate unused Commitments under such FacilityClass;
provided that the unused Commitments of, and the portion of the outstanding Loans under such Class held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination of the Required Class Lenders; provided, further,
that, to the same extent set forth in Section 10.07(n) with respect to determination of Required Lenders, the Loans
of any Affiliated Lender shall in each case be excluded for purposes of making a determination of Required Class Lenders.
“Required Facility
Lenders” means, as of any date of determination, with respect to any Facility, Lenders having more than 50% of the sum of (a) the
Total Outstandings under such Facility (with the aggregate amount of each Lender’s risk participation and funded participation
in L/C Obligations and Swing Line Loans, as applicable, under such Facility being deemed
“held” by such Lender for purposes of this definition) and (b) the aggregate unused Commitments under such Facility;
provided that the unused Commitments of, and the portion of the Total Outstandings under such Facility held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders; provided, further,
that, to the same extent set forth in Section 10.07(n) with respect to determination of Required Lenders, the Loans
of any Affiliated Lender shall in each case be excluded for purposes of making a determination of Required Facility Lenders.
“Required Lenders”
means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate
amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing
Line Loans being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused
Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitment and unused
Revolving Credit Commitments
of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of
making a determination of Required Lenders; provided, further, that, to the same extent set forth in Section 10.07(n) with
respect to determination of Required Lenders, the Loans of any Affiliated Lender shall in each case be excluded for purposes of making
a determination of Required Lenders.
“Required Revolving
Credit Lenders” means, as of any date of determination, Revolving Credit Lenders having more than 50% of the sum of the (a) Outstanding
Amount of all Revolving Credit Loans, Swing Line Loans and all L/C Obligations (with
the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate
unused Revolving Credit Commitments; provided that unused Revolving Credit Commitment of, and the portion of the Outstanding Amount
of all Revolving Credit Loans, Swing Line Loans and all L/C Obligations held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.
“Resolution Authority” means an EEA Resolution
Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”
means the chief executive officer,
director, president, vice president, chief financial officer, chief
legal officer, treasurer or,
assistant treasurer,
controller or assistant controller or other similar officer of a Loan Party or
designee of a Responsible Officer and in the case of a limited partnership or an exempted limited partnership, any officer or director
of the general partner or ultimate general partner, as the case may be, and, as to any document delivered on the Closing Date,
any secretary or assistant secretary of such Loan Party and
any officer or employee of the applicable Loan Party whose signature is included on an incumbency certificate or similar certificate
reasonably satisfactory to the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer
of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, 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.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests
of the BorrowerHoldings
or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity
Interest, or on account of any return of capital to the Borrower’sHoldings’
or a Restricted Subsidiary’s stockholders, partners or members (or the equivalent Persons thereof).
“Restricted Subsidiary”
means any Subsidiary of the BorrowerHoldings
other than an Unrestricted Subsidiary.
“Restructuring Consent
Date” means the first date on which Lenders constituting the requisite Lenders of each applicable Class that shall have
consented to the Restructuring Transactions, by amending Section 10.26 to reflect such consent or otherwise.
“Restructuring Transactions”
has the meaning set forth in Section 10.26.
“Revaluation Date”
means (a) with respect to any Loan denominated in an Approved Currency, each of the following: (i) each date of a Borrowing
of such Loan, (ii) each date of a continuation of such Loan pursuant to the terms of this Agreement,
and
(iii) the last day of each fiscal quarter of the Borrower and (iv) in the
case of a Revolving Credit Loan, the date of any voluntary reduction of a Revolving Credit Commitment pursuant to Section 2.06(a);
(b) with respect to any Letter of Credit denominated in an Approved Currency, each of the following: (i) each date of issuance
of such Letter of Credit, (ii) each date of any amendment of such Letter of Credit that would have the effect of increasing the
face amount thereof and (iii) the last day of each fiscal quarter; and
(c) such additional dates as the Administrative Agent or the respective L/C Issuer shall determine, or the Required Revolving
Credit Lenders shall require, at any time when (i) an Event of Default has occurred and is continuing or (ii) to the extent
that, and for so long as, the aggregate Revolving Credit Exposure of all Revolving Credit Lenders (for such purpose, using the Dollar
Equivalent in effect for the most recent Revaluation Date) exceeds 90% of the aggregate amount of the Revolving Credit Commitments;
and (d) the last day of each fiscal quarter.
“Revolver Extension
Request” has the meaning set forth in Section 2.16(b).
“Revolver Extension
Series” has the meaning set forth in Section 2.16(b).
“Revolving Commitment
Increase” has the meaning set forth in Section 2.14(a).
“Revolving Credit
Borrowing” means a Newborrowing
consisting of simultaneous Revolving Credit BorrowingLoans
of the same Type, in the same Approved Currency, and, in the case of Term SOFR Loans or RFR Loans, having the same Interest Period made
by each of the Revolving Credit Lenders pursuant to Section 2.01(c).
“Revolving Credit
Commitment” means (a) prior to the
Amendment No. 5 Effective Date, with respect to each Lender, the “,
as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Commitment”
as defined under this Agreement as in effect at any time prior to such date, (b) on and after the Amendment No. 5 Effective
Date, with respect to each Lender, the Lender’s New Revolving Credit Commitments and (c) in
the case of any Lender that becomes a Lender after the Amendment No. 5 Effective Date, the amount
specified in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, Loans
to the Borrower pursuant to Section 2.01(c) and
(b) purchase participations in L/C Obligations in respect of Letters of Credit, as such amount may be adjusted from time
to time in accordance with this Agreement (including Section 2.14). The aggregate Revolving Credit Commitments of all Revolving
Credit Lenders shall be $250,000,000500,000,000,
on the Amendment No. 59
Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
“Revolving Credit
Exposure” means the Newas
to each Revolving Credit Exposure. Lender,
the sum of the amount of the outstanding Principal Amount of such Revolving
Credit Lender’s Revolving Credit Loans and its Pro Rata Share
or other applicable share provided for under this Agreement of the amount of the L/C Obligations at
such time.
“Revolving Credit
Facility” means the New ,
at any time, the aggregate amount of the Revolving Credit FacilityCommitments
at such time.
“Revolving Credit
Lender” means, at any time, any Lender that has a Commitment
in respect of Revolving Credit Loans at such time, including Revolving Credit Commitment at such
time or, if the Revolving Credit, Incremental
Revolving Credit Commitment, Extended Revolving Credit Commitment of a given Extension Series and Other Revolving Credit Commitment
of a given Refinancing Series, or, if such Commitments have terminated, Revolving Credit Exposure.
“Revolving Credit
Loans” means any New Revolving Credit Loan made
pursuant to Section 2.01(c), Incremental Revolving Credit Loans, Other Revolving Credit Loans or Extended Revolving
Credit Loans, as the context may require.
“Revolving Credit
Note” means a promissory note of the Borrower payable to any Revolving Credit Lender or its registered assigns, in substantially
the form of Exhibit D-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Credit Lender resulting
from the Revolving Credit Loans made by such Revolving Credit Lender to the Borrower.
“RFR” means
the EURIBO Rate, the TIBOR Rate or the SONIA Rate, as applicable; provided that, notwithstanding anything to the contrary in the
definition of “EURIBO Rate”, the definition of “TIBOR Rate”, the definition of “SONIA Rate” or this
Agreement, if (i) the Borrower and the Administrative Agent reasonably determine in good faith that an interest rate (including,
without limitation, the EURIBO Rate, the TIBOR Rate or the SONIA Rate) is not ascertainable pursuant to this Agreement and the inability
to ascertain such rate is unlikely to be temporary or (ii) the circumstances set forth in the preceding clause (i) have not
arisen but the supervisor for the administrator of the Relevant Screen Rate or a Governmental Authority having jurisdiction over the
Administrative Agent has made a public statement identifying a specific date after which the Relevant Screen Rate shall no longer be
made available or used for determining interest rates for loans, the Administrative Agent shall so notify the applicable Lenders in writing
(the occurrence of either of the foregoing conditions, a “Benchmark Discontinuation Event”) and the “EURIBO
Rate”, the “TIBOR Rate” and/or the “SONIA Rate”, as applicable, shall be an alternate benchmark floating
rate of interest established by the Administrative Agent and the Borrower that is generally accepted as one
of the then prevailing market conventions
for determining a rate of interest for similar syndicated loans in the United States at such time and shall include (A) the
spread or method for determining a spread or other adjustment or modification that is generally accepted as one
of the then prevailing market conventions
for determining such spread, method, adjustment or modification and (B) other adjustments to such alternate term rate and
this Agreement (x) to not increase or decrease pricing in effect for the Interest Period on the Business Day immediately preceding
the Business Day on which such alternate rate is selected pursuant to this provision (but for the avoidance of doubt which would not
reduce the Applicable Rate) and (y) other changes necessary to reflect the available interest periods for such alternate rate) for
similar syndicated leveraged loans of this type in the United States at such time (any such rate, the “Successor Benchmark Rate”),
and the Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest
and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 10.01,
such amendment shall become effective without any further action or consent of any other party to this Agreement; provided, further,
if a Successor Benchmark Rate has not been established pursuant to the immediately preceding proviso after the Borrower and the Administrative
Agent have reached such a determination, the Borrower and the Required Facility Lenders may select a different alternate rate as long
as it is reasonably practicable for the Administrative Agent to administer such different rate and, upon not less than 15 Business Days’
prior written notice to the Administrative Agent, such Required Facility Lenders and the Borrower shall enter into an amendment to this
Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable and, notwithstanding
anything to the contrary in Section 10.01, such amendment shall become effective without any further action or consent of
any other party to this Agreement. For the avoidance of doubt, if a Benchmark Discontinuation Event occurs, the Applicable Rate for any
Loan shall be determined in accordance with Section 3.06(c) until the date a Successor Benchmark Rate or other alternate
term rate determined pursuant to the proviso above has been established in accordance with the requirements of this definition. Notwithstanding
the foregoing, RFR and any applicable Successor Benchmark Rate shall be deemed to not be less than 0% per annum.
“RFR Loan”
means a Loan that bears interest at a rate based on the EURIBO Rate, the TIBOR Rate or the SONIA Rate, as applicable.
“S&P”
means S&P Global
Ratings, a business unit of Standard & Poor’s RatingsFinancial
Services, a division of The McGraw Hill-Companies, Inc. LLC,
and any successor thereto.
“Sale
and Lease-Back Transaction” means any arrangement providing for the leasing (or similar arrangement) by Holdings or any of
its Restricted Subsidiaries of any Real Property or tangible personal property, which property has been or is to be sold or transferred
by Holdings or such Restricted Subsidiary to a third Person in contemplation of such leasing (or similar arrangement); provided
that any leasing arrangement by any entity other than Holdings or a
Restricted Subsidiary of the Borrower shall not constitute a Sale
and Lease-Back Transaction.
“Same Day Funds”
means immediately available funds.
“Sanction(s)”
means any international economic sanctions
administered or enforced by the United States government (including without limitation, OFAC), the United Nations Security Council,
the European Union or HerHis
Majesty’s Treasury.
“Sanctioned
Countries” means any country or territory that is the
target of comprehensive Sanctions (at the time of this Agreement,
the Crimea, so-called Donetsk People’s Republic, Kherson, so-called Luhansk People’s Republic, and Zaporizhzhia regions of
Ukraine, Cuba, Iran, North Korea, and Syria).
“SEC” means
the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Hedge Agreement”
means any Swap Contract permitted under Article VII that is entered into by and
between the BorrowerHoldings
or any Restricted Subsidiary and any Approved Counterparty and(unless
otherwise designated as a “Secured Hedge Agreement” under this Agreement; provided
that such Swap Contract is not secured by the ABL Facility Collateral.in
writing by the Borrower and the applicable Approved Counterparty
to the Administrative Agent as unsecured, which notice may designate all Swap Contracts under a specified Master Agreement as unsecured).
“Secured Parties”
means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the
L/C Issuers, any Approved Counterparty party to a Secured Hedge Agreement or Treasury Services Agreement, the Supplemental Agents
and each co-agent or sub-agent appointed by the Administrative Agent or Collateral Agent from time to time pursuant to Section 9.02.
“Securities Act”
means the Securities Act of 1933, as amended.
“Securitization
Assets” means the accounts receivable, royalty or other revenue streams and other rights to payment and any other assets subject
to a Qualified Securitization Facility and the proceeds thereof.
“Securitization
Facility” means any of one or more receivables, factoring or securitization financing facilities as amended, supplemented,
modified, extended, renewed, restated or refunded from time to time,
the obligations of which are non-recourse (except for customary representations,
warranties, covenants, performance guaranties and indemnities made in connection with such facilities) to Holdings or any of its Restricted
Subsidiaries (other than a Securitization Subsidiary) pursuant to which Holdings or any of its Restricted Subsidiaries sells or grants
a security interest in its accounts receivable, payables or Securitization Assets or assets related thereto to either (a) a Person
that is not a Restricted Subsidiary or (b) a Securitization Subsidiary that in turn sells its accounts receivable, payable or Securitization
Assets or assets related thereto to a Person that is not a Restricted Subsidiary.
“Securitization
Fees” means distributions or payments made directly or by means of discounts with respect to any participation interest issued
or sold in connection with, and other fees paid to a Person that is not a Securitization Subsidiary in connection with, any Qualified
Securitization Facility.
“Securitization
Subsidiary” means any Subsidiary formed for the purpose of, and that engages in one or more Qualified Securitization Facilities
and other activities reasonably related thereto.
“Security Agreement”
means the Security Agreement substantially in the form of Exhibit G, dated as of the Closing Date, among Holdings, the Borrower,
certain sSubsidiaries
of the Borrower and the Collateral Agent.
“Security Agreement
Supplement” has the meaning set forth in the Security Agreement.
“Senior Notes”
means the Dollar Senior Notes and the Euro Senior Notes.
“Senior Notes Documents”
means the Dollar Senior Notes Documents and the Euro Senior Notes Documents.
“Senior Notes Indenture”
means the Indenture for the Dollar Senior Notes and the Euro Senior Notes, dated as
of June 264,
20142024,
among the Borrower and Gates Global Co., as co-issuersissuer,
the guarantors listed therein, U.S. Bank Trust
Company, National Association, as trustee, escrow agent, dollar transfer agent, dollar registrar
and dollar paying agent, Elavon Financial Services Limited, UK Branch, as euro paying agent and euro transfer agent and Elavon Financial
Services Limited, as euro registrar, as amended or supplemented from time to time.
“Similar Business”
means (1) any business conducted or proposed to be conducted by the BorrowerHoldings
or any of its Restricted Subsidiaries (or
any Subsidiary thereof) on the ClosingAmendment
No. 9 Effective Date, and any reasonable extension thereof, or (2) any business or other activities that are reasonably
similar, ancillary, incidental, complementary or related to, or a reasonable extension, development or expansion of, the businesses in
which the BorrowerHoldings
and its Restricted Subsidiaries (or
any Subsidiary thereof) are engaged or propose to be engaged on the ClosingAmendment
No. 9 Effective Date.
“SOFR” with
respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the
administrator of the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.
“SOFR Determination
Date” has the meaning specified in the definition of “Daily Simple SOFR.”
“SOFR Rate Day”
has the meaning specified in the definition of “Daily Simple SOFR.”
“Sold Entity or Business”
has the meaning set forth in the definition of the term “Consolidated EBITDA.”
“Solicited Discount
Proration” has the meaning set forth in Section 2.05(a)(v)(D)(3).
“Solicited Discounted
Prepayment Amount” has the meaning set forth in Section 2.05(a)(v)(D)(1).
“Solicited Discounted
Prepayment Notice” means a written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to Section 2.05(a)(v)(D) substantially
in the form of Exhibit ML-6.
“Solicited Discounted
Prepayment Offer” means the irrevocable written offer by each Lender, substantially in the form of Exhibit ML-7,
submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Response Date”
has the meaning set forth in Section 2.05(a)(v)(D)(1).
“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair
value of the assets of such Person and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities,
subordinated, contingent or otherwise, (b) the present fair saleable value of the property of such Person and its Subsidiaries,
on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of
their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured
in the ordinary course,
(c) such Person and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent
or otherwise, as such liabilities become absolute and matured in
the ordinary course and (d) such Person and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about
to engage in, business for which they have unreasonably small capital. The amount of any contingent liability at any time shall be computed
as the amount that would reasonably be expected to become an actual and matured liability.
“SONIA”
shall means,
with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the
SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”
shall means
the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s
Website” shall 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.
“SONIA
Interest Day” has the meaning set forth in the definition of “SONIA Rate”.
“SONIA Interest Period”
shall means,
with respect to any SONIA Rate Borrowing, the period beginning on (and including) the date on which such SONIA Rate Borrowing is made
or continued to (but excluding) the date which is one month thereafter; provided that (a) if any SONIA Interest Period would end
on a day other than a Business Day, such SONIA 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 immediately preceding
Business Day, (b) any SONIA 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 SONIA Interest Period) shall end on the last Business Day of the
last calendar month at the end of such SONIA Interest Period and (c) no SONIA Interest Period shall extend beyond the Revolving
Credit Maturity Date of
the Revolving Credit Facility. 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.
“SONIA Rate”
shall means,
for any day (a “SONIA Interest Day”), SONIA for the day that is the fifth Business Day prior to (A) if SONIA
Interest Day is a Business Day, such SONIA Interest Day or (B) if such SONIA Interest Day is not a Business Day, the Business Day
immediately preceding SONIA Interest Day. Any change in the SONIA Rate due to a change in SONIA shall be effective from and including
the effective date of such change in SONIA without notice to the Borrower. If by 5:00 pm (London time) on the second (2nd) Business Day
immediately following any day “i”, SONIA in respect of such day “i” has not been published on the SONIA Administrator’s
Website and a Benchmark Replacement DateDiscontinuation
Event with respect to SONIA has not occurred, then SONIA for such day “i” will be SONIA as published in respect of
the first preceding Business Day for which SONIA was published on the SONIA Administrator’s Website; provided that SONIA
determined pursuant to this sentence shall be utilized for purposes of calculation of the SONIA Rate for no more than three (3) consecutive
Business Days. The SONIA Rate shall be deemed to not be less than 0.00% per annum in all cases.
“SONIA Rate Loans”
shall mean any Revolving Credit Loan bearing interest at a rate determined by reference to the SONIA Rate.
“SPAC
IPO” means the acquisition, purchase, merger, amalgamation or other combination of the Borrower or any direct or indirect parent
company of the Borrower, by, or with, a publicly traded special purpose acquisition company or targeted acquisition company or any entity
similar to the foregoing (a “SPAC IPO Entity”) that results in any common Equity Interests of the Borrower, any direct
or indirect parent company of the Borrower or such SPAC IPO entity (or its successor by merger, amalgamation or other combination) being
publicly traded on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in
Canada, the United Kingdom or any country of the European Union.
“SPAC
IPO Entity” has the meaning set forth in the definition of “SPAC IPO”.
“SPC” has
the meaning set forth in Section 10.07(i).
“Specified
Default” means a Default under Section 8.01(a),
(f) or (g).
“specified
currency” has the meaning set forth in Section 10.22.
“Specified
Debt” has the meaning set forth in the definition of “Permitted Earlier Maturity Indebtedness Exception”.
“Specified Discount”
has the meaning set forth in Section 2.05(a)(v)(B)(1).
“Specified Discount
Prepayment Amount” has the meaning set forth in Section 2.05(a)(v)(B)(1).
“Specified Discount
Prepayment Notice” means a written notice of the Borrower of a Borrower Offer of Specified Discount Prepayment made pursuant
to Section 2.05(a)(v)(B) substantially in the form of Exhibit ML-8.
“Specified Discount
Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit ML-9,
to a Specified Discount Prepayment Notice.
“Specified Discount
Prepayment Response Date” has the meaning set forth in Section 2.05(a)(v)(B)(1).
“Specified Discount
Proration” has the meaning set forth in Section 2.05(a)(v)(B)(3).
“Specified Equity
Contribution” means any cash contribution to the common equity of Holdings and/or any purchase or investment in an Equity Interests
of Holdings other than Disqualified Equity Interests.
“Specified Guarantor”
means any Guarantor that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to
giving effect to Section 11.12).
“Specified
IPO” means a Qualified IPO generating aggregate gross proceeds of at least $450.0 million, the net proceeds (including,
but not limited to, net of investment banking fees, underwriting discounts and commissions, and other reasonable out-of-pocket
expenses and other customary expenses (including attorney’s fees and other customary fees, issuance costs, discounts and other
costs and expenses)) of which are contributed, directly or indirectly, to the Borrower in the form of cash, Cash Equivalents or
100% of the Equity Interests in a subsidiary holding such net proceeds in the form of cash or Cash Equivalents and, in each case, promptly
applied by the Borrower to repay, redeem or otherwise defease outstanding Indebtedness.
“Specified Representations”
means those representations and warranties made by the Borrower in Sections 5.01(a), 5.01(b)(ii), 5.02(a),
5.02(b)(i), 5.04, 5.13, 5.18, 5.20(a), 5.20(c)
and 5.21.
“Specified Transaction”
means any Investment, Disposition, incurrence or prepayment,
redemption, repurchase, defeasance, acquisition similar payment, extinguishment, retirement or repayment of Indebtedness, Restricted
Payment, Subsidiary designation, Incremental Term Loan or Revolving Commitment Increase in respect of which the terms of this Agreement
require any test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided
that a Revolving Commitment Increase, for purposes of this “Specified Transaction” definition, shall be deemed to be fully
drawn.
“Spot Rate”
means, for any currency, on any Revaluation Date or other relevant date of determination, the rate determined by the Administrative Agent
to be the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative Agent of such currency with
another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on such date; provided
that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if
the Administrative Agent does not have as of the date of determination a spot buying rate for any such currency.
“Sterling”
and “£” mean freely transferable lawful money of the United Kingdom (expressed in pounds sterling).
“Sterling Outstanding”
means the Outstanding Amount of all Revolving Credit Loans, and
L/C Obligations and Swing Line Loans, in each case, to the extent denominated
in Sterling.
“Sterling Sublimit”
means the Dollar Equivalent of Sterling equal to $25,000,000.
“Submitted Amount”
has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Submitted Discount”
has the meaning set forth in Section 2.05(a)(v)(C)(1).
“Subsidiary”
of a Person means a corporation, partnership,
limited partnership, joint venture, limited liability company or other business entity of which (i) a majority of the shares
of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities
or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, (ii) more than
half of the issued share capital is at the time beneficially owned or (iii) the management of which is otherwise cControlled,
directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein
to a “Restricted
Subsidiary”, “Unrestricted Subsidiary” or “Subsidiary” or to “Restricted
Subsidiaries”, “Unrestricted Subsidiaries” or “Subsidiaries” shall refer to a Restricted
Subsidiary, Unrestricted Subsidiary or Subsidiariesy,
as applicable of Holdings
and the Borrower shall
be deemed to be a Restricted Subsidiary of Holdings. For the avoidance of doubt,
unless otherwise specified, any entity that is owned at a 50.0% or less level (as described above) shall not be a “Subsidiary”
for any purpose under this Agreement, regardless of whether such entity is consolidated on Holdings’,
the Borrower’s or any Restricted Subsidiary’s financial statements.
“Subsidiary Guarantor”
means any Guarantor other than,
collectively, the Subsidiaries of Holdings that
are Guarantors.
“Successor Alternative
Benchmark Rate” has the meaning set forth in the definition of “Term SOFR”.
“Successor Benchmark
Rate” has the meaning set forth in the definition of “RFR”.
“Successor CompanyBorrower”
has the meaning set forth in Section 7.04(d)(I).
“Successor
Holdings” has the meaning set forth in Section 7.04(d)(II).
“Supplemental Agent”
has the meaning set forth in Section 9.14(a) and “Supplemental Agents” shall have the corresponding
meaning.
“Supported
QFC” has the meaning set forth in Section 10.2410.25.
“Swap” means,
any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity
Exchange Act.
“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Swap Obligation”
means, with respect to any Person, any obligation to pay or perform under any Swap Contract.
“Swap Termination
Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may
include a Lender or any Affiliate of a Lender).
“T2”
means the real time gross settlement system operated by the Eurosystem, or any successor system.
“Swing Line Borrowing”
means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Facility”
means the swing line loan facility made available by the Swing Line Lenders pursuant to Section 2.04.
“Swing Line Lender”
means Credit Suisse AG, Cayman Islands Branch, in its capacity as provider of Swing Line Loans or any successor swing line lender hereunder.
“Swing Line Loan”
has the meaning set forth in Section 2.04(a).
“Swing
Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit C.
“Swing
Line Note” means a promissory note of the Borrower payable to the Swing Line Lender or its registered assigns, in substantially
the form of Exhibit D-3 hereto, evidencing the aggregate Indebtedness of
the Borrower to the Swing Line Lender resulting from the Swing Line Loans.
“Swing
Line Obligations” means, as at any date of determination, the aggregate
principal amount of all Swing Line Loans outstanding.
“Swing
Line Sublimit” means an amount equal to the lesser of (a) $10,000,000
and (b) the aggregate amount of the Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Commitments.
“TARGET
Day” means any day on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer payment system, which utilizes a single shared platform and which was launched on November 19, 2007,T2
is open for the settlement of payments in Eeuro.
“Tax Group”
has the meaning set forth in Section 7.06(i)(iii).
“Taxes”
has the meaning set forth in Section 3.01(a).
“Term Borrowing”
means a borrowing consisting of simultaneous Term Loans of the same Class and Type and, in the case of RFR Loans and Term SOFR Loans,
having the same Interest Period made by each of the Term Lenders pursuant to Section 2.01(a),
an Incremental Amendment, a Refinancing Amendment or an Extension.
“Term Commitment”
means, as to each Term Lender, its obligation to make a Term Loan to the Borrower hereunder, expressed as an amount representing the
maximum principal amount of the Term Loan to be made by such Term Lender under this Agreement, as such commitment may be (a) reduced
from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to (i) assignments
by or to such Term Lender pursuant to an Assignment and Assumption, (ii) an Incremental Amendment, (iii) a Refinancing Amendment
or (iv) an Extension.
“Term Lender”
means, at any time, any Lender that has an Initial B-2-4
Dollar Term Commitment, Initial B-3-5
Dollar Term Commitment, Initial B-4 Dollar Term Commitment, a Term Commitment
or a Term Loan at such time.
“Term
Loans” means any Initial B-2 Dollar Term
Loan, Initial B-3 Dollar Term Loan, Initial B-4 Dollar Term Loan
or any Incremental Term Loan, Refinancing Term Loan or Extended Term Loan designated as a “Term Loan,” as the context may
require.
“Term Loan Extension
Request” has the meaning set forth in Section 2.16(a).
“Term Loan Extension
Series” has the meaning set forth in Section 2.16(a).
“Term Loan Increase”
has the meaning set forth in Section 2.14(a).
“Term Loan Standstill
Period” has the meaning provided in Section 8.01(b).
“Term
Loans” means any Initial B-4 Dollar
Term Loan, Initial B-5 Dollar Term Loan
or any Incremental Term Loan, Refinancing Term Loan or Extended Term Loan designated as a “Term Loan,” as the context may
require.
“Term Note”
means a promissory note of the Borrower payable to any Term Lender or its registered assigns, in substantially the form of Exhibit D-1
hereto, evidencing the aggregate Indebtedness of the Borrower to such Term Lender resulting from the Term Loans of eachthe
applicable Class made by such Term Lender.
“Term Priority Collateral”
has the meaning provided for in the ABL Intercreditor Agreement.
“Term Priority Collateral
Account” means a deposit account or securities account under the sole dominion and control of the Collateral Agent, and otherwise
established in a manner reasonably satisfactory to the Collateral Agent, which deposit account or securities account holds exclusively
identifiable proceeds of Term Priority Collateral.
“Term SOFR”
means,
(a) for
any calculation with respect to a Term SOFR Loan, 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, at the option of the Borrower, (i) 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 or (ii) Term SOFR shall be deemed to equal Daily Simple SOFR for each day the
applicable Loan remains outstanding, and
(b) for
any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day,
the “Base Rate 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 Base Rate 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 Base Rate Term SOFR Determination Day;
provided
that, if (i) the Borrower and the Administrative Agent reasonably determine in good faith that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition and the inability to ascertain such rate is unlikely to be temporary
or (ii) the Applicable Authority has made a public statement identifying a specific date after which all tenors of Term SOFR (including
any forward-looking term rate thereof) shall or will no longer be representative or made available, or used for determining the interest
rate of loans denominated in Dollars, or shall or will otherwise cease, provided that, in each case, at the time of such statement,
there is no successor administrator that is reasonably satisfactory to the Administrative Agent that will continue to provide such representative
tenor(s) of Term SOFR (any such event or circumstance in the foregoing clauses (i) and (ii) of this proviso, a “Replacement
Event”), “Term SOFR” shall be an alternate rate of interest established by the Administrative Agent and the Borrower
that is generally accepted as one of the then prevailing market conventions for determining a rate of interest for similar syndicated
loans in the United States at such time, which shall include (A) the spread or method for determining a spread or other adjustment
or modification that is generally accepted as one of the then prevailing market convention for determining such spread, method, adjustment
or modification and (B) other adjustments to such alternate rate and this Agreement (x) to not increase or decrease the pricing
in effect at the time of selection of such alternate rate (but for the avoidance of doubt which would not reduce the Applicable Rate)
and (y) other changes necessary to reflect the available interest periods for such alternate rate for similar syndicated leveraged
loans of this type in the United States at such time (any such rate, the “Successor Alternative Benchmark Rate”).
The Administrative Agent and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest
and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 10.01,
such amendment shall become effective without any further action or consent of any other party to this Agreement; provided, further,
that if a Successor Alternative Benchmark Rate has not been established pursuant to the immediately preceding proviso after the Borrower
and the Administrative Agent have reached such a determination, the Borrower and the Required Facility Lenders with respect to any Facility
may select a different alternate rate as long as it is reasonably practicable for the Administrative Agent to administer such different
rate and, upon not less than 15 Business Days’ prior written notice to the Administrative Agent, the Required Facility Lenders
with respect to such Facility and the Borrower shall enter into an amendment to this Agreement to reflect such alternate rate of interest
and such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 10.01,
such amendment shall become effective without any further action or consent of any other party to this Agreement. Notwithstanding the
foregoing, if Term SOFR as so determined would be less than the Applicable Term SOFR Floor with respect to any Facility, such rate shall
be deemed to be the Applicable Term SOFR Floor with respect to such Facility for purposes of this Agreement. For the avoidance of doubt,
if a Replacement Event occurs, the Applicable Rate for any Term SOFR Loan shall be determined in accordance with the proviso to clause
(a) or (b) of this definition, as applicable, until the date a Successor Alternative Benchmark Rate or other alternative term
rate determined pursuant to the proviso above has been established in accordance with the requirements of this definition.
“Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate as mutually agreed
by the Administrative Agent and the Borrower).
“Term
SOFR Loan” means (a) an Initial B-3 Dollar Term Loan (or any one or more portions
thereof) that bears interest based on Adjusted Term SOFR or (b) a Revolving Credit Loan or an Initial B-4 Dollar
Term Loan or an Initial B-5 Dollar Term Loan (or any one or more
portions thereof) that bears interest based on Term SOFR.
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR.
“Test Period”
means, for any date of determination under this Agreement, the latest four consecutive fiscal quarters of the
BorrowerHoldings for which financial statements have
been delivered to the Administrative Agent on or prior to the ClosingAmendment
No. 9 Effective Date and/or for which financial statements are required to be delivered pursuant to Section 6.01,
as applicable.
“Testing
Party” has the meaning set forth in Section 1.02(h).
“Threshold Amount”
means the greater of (i) $100,000,000200,000,000
and (ii) 25% of LTM Consolidated EBITDA.
“TIBOR Rate”
shall mean, for any Borrowing denominated in Japanese Yen and for any Interest Period, the rate per annum equal to the Tokyo Interbank
Offered Rate as administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other Person that takes over the administration
of such rate) for a period equal in length to such Interest Period, as displayed on the applicable Reuters page (or on any successor
or substitute page or service providing such quotations as determined by the Administrative Agent from time to time) at approximately
11:00 a.m. (Tokyo time) two Business Days prior to the commencement of such Interest Period (the “TIBOR Screen Rate”).
“TIBOR Screen Rate”
shall have the meaning specified in the definition of “TIBOR Rate”.
“Total Assets”
means the total assets of the BorrowerHoldings
and the Restricted Subsidiaries on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of
the Borrower delivered pursuant to Sections 6.01(a) or (b).
“Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“Transaction Expenses”
means any fees or expenses incurred or paid by the Investors, Holdings, the Borrower or any of its (or their) Subsidiaries in connection
with the Transactions (including expenses in connection with hedging transactions related to the Facilities or the ABL Credit Agreement
(as such term was defined in the Credit Agreement as
of the Closing Date) and any original issue discount or upfront
fees), the Investor Management Agreement (to the extent accrued on or prior to the Closing Date), this Agreement and the other Loan Documents,
the Senior Notes and the transactions contemplated hereby and thereby.
“Transactions”
means, collectively, (a) the funding of the Initial Dollar Term Loans, the Initial Euro Term Loan and any Initial Revolving Borrowing
on the Closing Date and the execution and delivery of Loan Documents entered into on the Closing Date, (b) the Refinancing (as
such term was defined in the Credit Agreement as of the Closing Date), (c) the issuance of the Senior Notes, (d) the
entrance into of the ABL Credit Agreement and the initial funding of a portion of the loans thereunder[reserved],
(e) the making of the Equity Contribution and (f) the payment of Transaction Expenses.
“Transferred Guarantor”
has the meaning set forth in Section 11.10means
any Subsidiary Guarantor that is sold or otherwise transferred to
a person or persons, none of which is a Loan Party.
“Transformative AcquisitionTransaction”
means any merger, acquisition,
Disposition, dissolution, consolidation or Investment by the BorrowerHoldings
or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation
of such acquisition or Investment or,
(b) is for consideration of greater than $250,000,000 at the
time of determination or (c) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition
or Investmenttransaction, would not provide the
BorrowerHoldings and its Restricted Subsidiaries
with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation,
as determined by the Borrower acting in good faith.
“Treasury Services
Agreement” means any agreement between the BorrowerHoldings
or any Subsidiary and any Approved Counterparty relating to (i) treasury,
depository, credit card, debit card, stored value cards, purchasing or procurement cards and cash management services or automated clearinghouse
transfer of funds or any overdraft or similar services;
provided that such agreement is not secured by the ABL Facility Collateral. or
(ii) letters of credit, guarantees or other credit support provided in respect of trade payables of Holdings or any Subsidiary,
in each case issued for the benefit of any bank, financial institution or other person that has acquired such trade payables pursuant
to “supply chain” or other similar financing for vendors and suppliers, including tooling vendors.
“Type” as
to any Loan or Borrowing, shall refer to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Base Rate, the EURIBOR Screen Rate, the SONIA Rate, TIBOR Rate, or Term SOFR, as applicable.
“U.S.
Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) 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.
Special Resolution Regimes” has the meaning set forth in Section 10.24.
“UCC
Filing Collateral” means any Collateral, including Collateral constituting investment property, for which a security interest
can be perfected by filing a UCC-1 financing statement.
“UK Financial Institution”
means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended frorm
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.
“Unaudited Financial
Statements” means the unaudited consolidated balance sheets of the Company and its Subsidiaries as of March 31, 2014 and
related consolidated statements of operations, comprehensive income, cash flows and equity of the Company and its Subsidiaries for the
year to date period ended March 31, 2014.
“UK
Security Agreement” means the English law governed debenture entered in accordance with the terms of Amendment No. 9 between
Holdings and the Collateral Agent.
“Uniform Commercial
Code” or “UCC” means the Uniform Commercial Code as the same may from time to time be in effect in the State
of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to
apply to any item or items of Collateral.
“United States”
and “U.S.” mean the United States of America.
“United
States Tax Compliance Certificate” means a certificate substantially in
the form of Exhibit M hereto.
“Unreimbursed Amount”
has the meaning set forth in Section 2.03(c)(i).
“Unrestricted Subsidiary”
means (i) as of the Closing Date, each Subsidiary of the Borrower listed on Schedule 1.01C, (ii) any Subsidiary of the
BorrowerHoldings designated by the
board of managers of the BorrowerHoldings as an Unrestricted
Subsidiary pursuant to Section 6.14 subsequent to the Closing Date and (iii) any Subsidiary of an Unrestricted Subsidiary;
provided that New Holdings may not be designated as an Unrestricted Subsidiary.
“USA PATRIOT Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 10756, as amended or modified from time to time.
“Voting
Stock” of any Person as of any date means the Equity Interests of such
Person that is at the time entitled to vote in the election of the board of directors (or similar body) of such Person.
“U.S. Borrower”
means a Borrower that is, or is treated for U.S. federal income tax purposes as disregarded as separate from, a U.S. Person.
“U.S.
Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) 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 a “United States person” as defined in Section 7701(a)(30)
of the Code.
“U.S. Special Resolution
Regimes” has the meaning set forth in Section 10.24.
“Weighted Average
Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the
sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) the then outstanding principal
amount of such Indebtedness.;
provided that, for purposes of determining the Weighted Average Life to Maturity of any Indebtedness that is being extended, replaced,
refunded, refinanced, renewed or defeased, the effect of any amortization or prepayment prior to the date of the applicable extension,
replacement, refunding, refinancing, renewal or defeasance shall be disregarded.
“wholly owned”
means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other
than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable
Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
“Withholding
Agent” means any Loan Party and the Administrative Agent.
“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.
“Yen” and
“¥” mean lawful money of Japan.
“Yen Outstanding”
means the Outstanding Amount of all Revolving Credit Loans, and
L/C Obligations and Swing Line Loans, in each case, to the extent denominated
in Yen.
“Yen Sublimit”
means the Dollar Equivalent of Yen equal to $10,000,000.
“Yield Differential”
has the meaning set forth in Section 2.14(e)(iii).
SECTION 1.02 Other
Interpretive Provisions.
With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.
(b) The
words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import when used
in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.
(c) Article,
Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(d) The
term “including” is by way of example and not limitation.
(e) The
term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic form.
(f) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including”; the words “to” and “until” each mean “to but excluding”; and the word “through”
means “to and including.”
(g) Section headings
herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this
Agreement or any other Loan Document.
(h) In
connection with any action being taken solely in connection with a Limited Condition
AcquisitionTransaction,
for purposes of:
(x) determining
compliance with any provision of this Agreement which requires the calculation of the Consolidated First Lien Net Leverage Ratio, the
Consolidated Secured Net Leverage Ratio or,
the Consolidated Total Net Leverage Ratio or the Consolidated Interest
Coverage Ratio; or
(y) testing
availability under baskets or any other calculations set forth in
this Agreement (including baskets or any other calculations measured
as a percentage of Total Assets, Consolidated EBITDA, Consolidated Interest
Expense or by reference to the Cumulative Credit or the Available RP Capacity Amount, if any);
in
each case, at the option of the Borrower, any of its Restricted Subsidiaries,
a direct or indirect parent of the Borrower, or any
successor entity of any of the foregoing (including a third party) (the “Testing Party”) (such election
to exercise such option in connection with any Limited Condition Transaction,
an “LCT Election”), with such option to be exercised on or prior to the date of execution of the definitive documentation,
letter of intent, submission of notice or the making of definitive declaration, as applicable, with respect to such Limited Condition
Transaction, the date of determination of whether any such action
is permitted hereunder shall be deemed to be (v) in the case
of any acquisition or other Investment (including by way of merger,
amalgamation or consolidation), any Disposition or any assumption
or incurrence of Indebtedness or issuance of Equity Interests, or any transaction relating thereto, the date (or on the basis of the
financial statements for the most recently ended reference period) of entry into a letter of intent or the definitive agreements (or,
if applicable, a binding offer, or launch of a “certain funds” tender offer) for, or the date any declaration is provided
or made with respect to, such Limited Condition Transaction, (w) in the case of any prepayment, redemption, repurchase, defeasance,
acquisition or other payment or refinancing of Indebtedness or Equity Interests, the date that the notice, which may be conditional,
of such prepayment, redemption, repurchase, defeasance, acquisition or other payment or refinancing of Indebtedness or Equity Interests
is given, (x) in the case of any other Restricted Payment, at the time (or on the basis of the financial statements for the most
recently ended reference period) of the declaration of such Restricted Payment, (y) in the case of any designation of a subsidiary
as restricted or unrestricted, the date of delivery of a certificate of a Responsible Officer of the Borrower is given with respect to
such designation or redesignation, or (z) in the case of sales in connection with an acquisition to which the United Kingdom City
Code on Takeovers and Mergers applies (or similar law or practice in other jurisdictions), the date on which a “Rule 2.7 announcement”
of a firm intends to make an offer or similar announcement or determination in another jurisdiction subject to laws similar to the United
Kingdom City Code on Takeovers and Mergers in respect of a target of a Limited Condition Transaction (the applicable date determined
pursuant to the foregoing clauses (v) through (z), the “LCT Test
Date”), and if, after giving Pro
Forma Effect to the Limited Condition Transaction and the other
transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as
if they had occurred at the beginning of the Test Period most recently
ended on or prior to the applicable LCT Test Date, Holdings or its Restricted Subsidiaries could
have taken such action on the relevant LCT Test
Date in compliance with such ratio, calculation or basket, such ratio,
calculation or basket shall be deemed to have been complied with.
in
each case, at the option of the Borrower (the Borrower’s election
to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”),
the date of determination of whether any such action is permitted hereunder shall be deemed to be the
date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test
Date”), and if, after giving pro forma effect to the Limited
Condition Acquisition and the other transactions to be entered into in connection therewith (including
any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most
recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Borrower
are available, the Borrower could have taken such action on the relevant LCA
Test Date in compliance with such ratio or basket, such ratio or
basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower
has made an LCAT
Election and any of the ratios, calculations or baskets for which
compliance was determined or tested as of the LCAT
Test Date are exceeded as a result of fluctuations in any such ratio,
calculation or basket, including due to fluctuations in Consolidated
EBITDA or Total Assets of the Borrower, the target company
or the Person subject to such Limited Condition Acquisition, atTransaction,
on or prior to the date of consummation of the relevant transaction
or action, such baskets, calculations or ratios will not be deemed
to have been exceeded as a result of such fluctuations. If the Borrower and
such baskets, ratios or financial metrics shall not be tested at the consummation of the Limited Condition Transaction except as contemplated
in clause (a) of the immediately succeeding proviso; provided, however, that, (a) if financial statements for
one or more subsequent Test Periods shall have become available, the Testing Party may elect, in its sole discretion, to re-determine
all such baskets, ratios and financial metrics on the basis of such financial statements, in which case such date of redetermination
shall thereafter be deemed to be the applicable LCT Test Date, (b) if any ratios or financial metrics improve or baskets increase
as a result of such fluctuations, such improved ratios, financial metrics or baskets may be utilized and (c) Consolidated Interest
Expense with respect to any Indebtedness expected to be incurred in connection with such Limited Condition Transaction will, for purposes
of the Consolidated Interest Coverage Ratio, be calculated using an assumed interest rate based on the available documentation therefor,
as determined by the Testing Party in good faith. If the Testing Party has made an LCAT
Election for any Limited Condition AcquisitionTransaction,
then, in connection with any subsequent calculation of anythe
ratios or basket availability
with respect to the incurrence of Indebtedness or Liens, or the making of Restricted
Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower, the prepayment,
redemption, purchase, defeasance or other satisfaction of Indebtedness, or
the designation of an Unrestricted Subsidiary, baskets or
financial metrics on or following the relevant LCAT
Test Date and prior to the earlier of (i) the date on
which such Limited Condition AcquisitionTransaction
is consummated or (ii) the date that the definitive agreement,
letter of intent, notice or declaration for such Limited Condition Acquisition isTransaction
is abandoned, terminated or expires without consummation of such Limited Condition AcquisitionTransaction,
any such ratio or,
basket or financial metric shall be tested
by calculatinged
the availability under such ratio or basket on a pPro
fForma bBasis
assuming such Limited Condition AcquisitionTransaction
and other transactions in connection therewith have been consummated (including
any incurrence of Indebtedness or Liens and the use of proceeds thereof)
have been consummated.
For
the avoidance of doubt, if the Testing Party has exercised its option
pursuant to the foregoing and any Default or Event of Default occurs following the LCT Test Date (including any new LCT Test Date) for
the applicable Limited Condition Transaction and prior to or on the date of the consummation of such Limited Condition Transaction, any
such Default or Event of Default shall be deemed not to have occurred or be continuing for purposes of determining whether any action
being taken in connection with such Limited Condition Transaction is permitted under this Agreement. If the Borrower has made an LCT
Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, calculation or test
with respect to the incurrence of Indebtedness or Liens, or the
making of distributions or Restricted Payments, Investments,
Dispositions, mergers or the designation of an Unrestricted Subsidiary
on or following the relevant LCT Test Date and prior to the earlier
of the date on which such Limited
Condition Transaction is consummated or the date that the definitive agreement, letter of intent, notice or declaration for such Limited
Condition Transaction is abandoned, terminated or expires without consummation of such Limited Condition Transaction, any such ratio,
calculation or test shall be calculated on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection
therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
In connection with
any action being taken in connection with a Limited Condition AcquisitionTransaction,
for purposes of determining compliance with any provision of this Agreement whichthat
requires that any representations and warranties are true and correct
or no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from
any such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied, so long as such
representations and warranties are true and correct (to the extent required by such provisions) as of, or no Default, Event of
Default or specified Event of Default, as applicable, exists on,
the LCT Test dDate
the definitive agreements for such Limited Condition Acquisition
are entered intoTransaction. For the avoidance of
doubt, if the Borrower has exercised its option under this clause (h), and anythe
first sentence of this paragraph, and any representation and warranty shall fail to be true and correct following the LCT Test Date for
the applicable Limited Condition Transaction or any Default, Event of Default or specified
Event of Default occurs following the LCT Test dDate
the definitive agreements for the applicable Limited Condition Acquisition
were entered intoTransaction and prior to or
on the date of the consummation of such Limited Condition AcquisitionTransaction,
any such failure, Default or,
Event of Default or specified Event of Default shall be deemed
to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition
AcquisitionTransaction
is permitted hereunder.
(i) For
purposes of determining whether Holdings, the Borrower and its Restricted
Subsidiaries comply with any exception to Article VII (other
than the Financial Covenant) where compliance with any such exception is based on a financial ratio or metric being satisfied as of a
particular point in time, it is understood that (a) compliance shall be measured at the time when the relevant event is undertaken,
as such financial ratios and metrics are intended to be “incurrence” tests and not “maintenance” tests and (b) correspondingly,
any such ratio and metric shall only prohibit Holdings and its Restricted Subsidiaries from creating, incurring, assuming, suffering
to exist or making, as the case may be, any new, for example, Liens, Indebtedness or Investments, but shall not result in any previously
permitted, for example, Liens, Indebtedness or Investments ceasing to be permitted hereunder.
(h) Notwithstanding
anything to the contrary herein, financial ratios and tests (including the
Consolidated Total Net Leverage Ratio, the Consolidated First
Lien Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Interest
Coverage Ratio and Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Test Period (or most recently
ended period of four consecutive fiscal quarters for which financial statements are internally available) during which any Specified
Transaction occurs shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis. Further, if since
the beginning of any such period and on or prior to the date of
any required calculation of a financial ratio or test (i) a Specified Transaction shall have occurred or (ii) any Person that
subsequently became a Subsidiary or was merged, amalgamated or consolidated with or into Holdings or any of its Subsidiaries since the
beginning of such period shall have consummated any Specified Transaction, then, in each case, any applicable financial ratio or test
shall be calculated on a Pro Forma Basis for such period as if such Specified Transaction had occurred at the beginning of the applicable
period (it being understood, for the avoidance of doubt, that solely for purposes of calculating (x) the Consolidated First Lien
Net Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate” and (y) compliance
with Section 7.11 (other than for the purpose of determining pro forma compliance with Section 7.11 as a condition to taking
any action under this Agreement), the date of the required calculation shall be the last day of the applicable period, and no Specified
Transaction occurring thereafter shall be taken into account).
(ik) For
purposes of Section 2.14 and the definition of “Available Incremental Amount”, (i) to the extent of availability
under theany applicable
ratio based prong under the Available Incremental Amount, unless the Borrower elects otherwise, such availability will be deemed
to be used, in connection with any incurrence or establishment of any Incremental Facility or any Incremental Equivalent Debt, prior
to the usage of the Free and Clear Incremental Amount, (ii) in the case of incurrence or establishment of any Incremental Facility
or any Incremental Equivalent Debt in reliance in part on the Incurrence-Based Incremental Amount and in part on the Free and Clear Incremental
Amount prong, (A) the portion incurred in reliance on the Free and Clear Incremental Amount shall be disregarded for purposes of
testing under the Incurrence-Based Incremental Amount, but giving full pro forma effect to any increase in the amount of Consolidated
EBITDA resulting from the application of the entire amount of such Incremental Facility or Incremental Equivalent Debt and the related
transactions and (B) the permissibility of the portion of such Incremental Facility or Incremental Equivalent Debt to be incurred
or implemented under the Free and Clear Incremental Amount shall be calculated thereafter and (iii) any portion of any Incremental
Facility or Incremental Equivalent Debt that is incurred or implemented under the Free and Clear Incremental Amount will be automatically
reclassified as having been incurred under the Incurrence-Based Incremental Amount if, at any time after the incurrence or implementation
thereof, such portion of such Incremental Facility or Incremental Equivalent Debt would, using the figures reflected in the financial
statements internally available for the most recently ended Test Period, be permitted under the Consolidated First Lien Net Leverage
Ratio test, the Consolidated Secured Net Leverage Ratio test, the Consolidated
Total Net Leverage Ratio test or the Consolidated Interest Coverage Ratio test, as applicable, set forth as part of the Incurrence-Based
Incremental Amount; it being understood and agreed that once such Incremental Facility or Incremental Equivalent Debt is reclassified
in accordance with this clause (iii), it shall not further be reclassified as having been incurred under the provision of the definition
of “Available Incremental Amount” in reliance on which such Incremental Facility or Incremental Equivalent Debt was originally
incurred. For purposes of Article VII, (x) to the extent of availability under any applicable ratio based basket set
forth therein, such availability will be deemed to be used prior to the usage of any applicable fixed amount set forth therein and (y) in
the case of any incurrence test in reliance on any ratio based basket set forth therein, for purposes of calculating whether such ratio
has been satisfied in connection with such incurrence any other Indebtedness or Lien that is substantially concurrently incurred in reliance
on any provision thereof that does not require compliance with any financial ratio or test shall be disregarded in the calculation of
such ratio, even if such other Indebtedness or Lien is of the same tranche or series (or, in the case of Liens, secures Indebtedness
of the same tranche or series) as such Indebtedness being incurred in reliance on a basket that requires compliance with such ratio.
If any commitments under any Incremental Revolving Facility or delayed draw
term commitments are deemed to be fully drawn at the time of the initial establishment thereof, any subsequent draws thereunder shall
not require compliance with any incurrence basket for purposes of determining whether such Indebtedness is permitted hereunder.
SECTION 1.03 Accounting
Terms.
(a) All
accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP, applied in a manner consistent with that used in preparing the Auditedmost
recently delivered Ffinancial
Sstatements that
have been delivered pursuant to Section 6.01(a), except as otherwise specifically prescribed herein.
(b) Notwithstanding
anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect
to any period during which any Specified Transaction occurs, the Consolidated First Lien Net Leverage Ratio, the Consolidated Secured
Net Leverage Ratio and,
the Consolidated Total Net Leverage Ratio and the Consolidated Interest
Coverage Ratio shall be calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.
SECTION 1.04 Rounding.
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 References
to Agreements, Laws, Etc.
Unless otherwise expressly
provided herein, (a) references to Organizational Documents,
agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements
and other modifications are permitted by the Loan Documents; and (b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting such Law.
SECTION 1.06 Times
of Day.
Unless otherwise specified,
all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
SECTION 1.07 Timing
of Payment or Performance.
When the payment of any obligation
or the performance of any covenant, duty or obligation is stated to be due or performance 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.
SECTION 1.08 Cumulative
Credit Transactions.
If more than one action occurs
on any given date the permissibility of the taking of which is determined hereunder by reference to the amount of the Cumulative Credit
immediately prior to the taking of such action, the permissibility of the taking of each such action shall be determined independently
and in no event may any two or more such actions be treated as occurring simultaneously.
SECTION 1.09 Divisions.
For all purposes under the
Loan Documents, in connection with any Delaware LLC Division: (a) if any asset, right, obligation or liability of any Person becomes
the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person
to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized
on the first date of its existence by the holders of its Equity Interests at such time.
SECTION 1.10 Additional
Approved Currencies.
(a) The
Borrower may from time to time request that Revolving Credit Loans be made and/or Letters of Credit be issued in a currency other than
those specifically listed in the definition of “Approved Currency”; provided that such requested currency is a lawful
currency (other than Dollars) that is readily transferable and readily convertible into Dollars in the relevant interbank market. Such
request shall be subject to the approval of the Administrative Agent and the Revolving Credit Lenders in the case of any Revolving Credit
Loans, in each case, in their sole discretion; and, in the case
of any such request with respect to the issuance of Letters of Credit,
such request shall also be subject to the approval of the applicable L/C Issuer, Administrative Agent and the Revolving Credit Lenders
in their sole discretion.
(b) Any
such request shall be made to the Administrative Agent not later than 11:00 a.m. (New York time), five
(5) Business Days prior to the date of the desired Borrowing
or issuance of a Letter of Credit (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such
request pertaining to Letters of Credit, the applicable L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to (i) in the case of Revolving Credit Loans, the Administrative Agent shall promptly notify each Revolving Credit Lender
thereof; and (ii) in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall also promptly
notify the applicable L/C Issuer thereof. Each Revolving Credit Lender and the applicable L/C Issuer (in
the case of a request pertaining to Letters of Credit) shall notify
the Administrative Agent, not later than 11:00 a.m. (New York time), three (3) Business Days after receipt of such request
whether it consents, in its sole discretion, to the making of Revolving Credit Loans or the issuance of Letters of Credit, as the case
may be, in such requested currency.
(c) Any
failure by a Revolving Credit Lender or an L/C Issuer, as the case
may be, to respond to such request within
the time period specified in the preceding sentence shall be deemed to be a refusal by such Revolving Credit Lender or L/C Issuer, as
the case may be, to permit Revolving Credit Loans to be made or Letters of Credit to be issued in such requested currency. If the Administrative
Agent and the Revolving Credit Lenders consent to making Revolving Credit Loans in such requested currency, the Administrative Agent shall
so notify Borrower and the Administrative Agent and the Borrower
shall enter into an amendment to this Agreement
to reflect any necessary interest rate mechanics for such currency and
such other related changes to this Agreement as may be applicable and, notwithstanding anything to the contrary in Section 10.01,
such amendment shall become effective without any further action or consent of any other party to this Agreement. Upon
effectiveness of such amendment, such currency shall thereupon be deemed for all purposes to be an Approved Currency hereunder for purposes
of any Borrowing of Revolving Credit Loans; and if the applicable L/C Issuer also consents to the issuance of Letters of Credit in such
requested currency, the Administrative Agent shall so notify the Borrower and such currency shall thereupon be deemed for all purposes
to be an Approved Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.09, the Administrative Agent shall promptly so notify the
Borrower.
ARTICLE II
The Commitments and Credit Extensions
SECTION 2.01 The
Loans.
(a) The
Dollar Term Borrowings. Subject to the terms and conditions set forth herein, each Term Lender severally agrees (i) to
make to the Borrower on the Closing Date loans denominated in Dollars in an aggregate amount not to exceed the amount of such Term Lender’s
Initial Dollar Term Commitment, (ii) to make to the Borrower on the Amendment No. 1 Effective Date loans
denominated in Dollars in an aggregate amount not to exceed the amount of such Term Lender’s Initial B-1
Dollar Term Commitment, (iii) to make to the Borrower on the Amendment No. 2 Effective Date loans denominated in Dollars in
an aggregate amount not to exceed the amount of such Term Lender’s Initial B-2 Dollar Term Commitment, (iv) (x) to make
to the Borrower on the Amendment No. 4 Effective Date loans denominated in Dollars in an aggregate amount not to exceed the amount
of such Term Lender’s Initial B-3 Dollar Term Commitment and (y) all of the Converted Initial B-3 Dollar Term Loans of each
Converting Initial B-2 Dollar Term Lender shall be converted into an Initial B-3 Dollar Term Loans of such Lender effective as of the
Amendment No. 4 Effective Date in a like principal amount and (v) to make to the Borrower on the Amendment No. 6
Effective Date loans denominated in Dollars in an aggregate amount not to exceed the amount of such Term Lender’s Initial B-4 Dollar
Term Commitment. For the avoidance of doubt, such conversion shall not constitute a novation of any interest
owing to any Converting Initial B-2 Term Lender and each Converting Initial B-2 Dollar Term Lender shall receive all accrued and unpaid
interest owing to it from the Borrower through but not including the Amendment No. 4 Effective Date with respect to its Converted
Initial B-3 Dollar Term Loan (which, in the case of accrued interest, shall be payable and
(ii) to make to the Borrower on the Amendment No. 49
Effective Date) loans denominated
in Dollars in an aggregate amount not to exceed the amount of such Term Lender’s Initial B-5
Dollar Term Commitment. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed.
Dollar Term Loans may be Base Rate Loans, RFR Loans or Term SOFR Loans, as further provided herein.
(b) The
Euro Term Borrowings. Subject to the terms and conditions set forth herein, each Term Lender severally agrees (i) to
make to the Borrower on the Closing Date loans denominated in euros in an aggregate amount not to exceed the amount of such Term Lender’s
Initial Euro Term Commitment, (ii) to make to the Borrower on the Amendment No. 1 Effective Date loans denominated in euros
in an aggregate amount not to exceed the amount of such Term Lender’s Initial B-1 Euro Term Commitment and (iii) to make to
the Borrower on the Amendment No. 2 Effective Date loans denominated in euros in an aggregate amount not to exceed the amount of
such Term Lender’s Initial B-2 Euro Term Commitment. Amounts borrowed under this Section 2.01(b) and repaid or prepaid
may not be reborrowed. Euro Term Loans will be RFR Loans. The Borrower shall pay all accrued and unpaid interest on the Initial
B-1 Euro Term Loans to the Term Lenders to, but not including, the Amendment No. 2 Effective Date on such Amendment No. 2 Effective
Date. The Initial B-2 Euro Term Loans shall have the same term, rights and obligations as the Initial B-1 Euro Term Loans as set forth
in this Agreement and the other Loan Documents, except as modified by Amendment No. 2.[Reserved].
(c) The
Revolving Credit Borrowings. On the Amendment No. 59
Effective Date, in accordance with, and upon the terms and conditions set forth in, Amendment No. 59
the entire amount of the existing Revolving Credit Commitments of each New Revolving
Credit Lender outstanding on such date shall continue hereunder and be reclassified as New Revolving
Credit Commitments on such date, together with any additional New Revolving Credit Commitments
pursuant to Amendment No. 59,
in an amount for each New Revolving Credit Lender as set forth on Schedule I of Amendment
No. 59
under the caption “New Revolving Credit Commitments”. Subject to the terms
and conditions set forth herein each New Revolving Credit Lender severally agrees to
make revolving credit loans denominated in an Approved Currency to the Borrower from its applicable Lending Office (each
such loan, a “New Revolving Credit Loan”) from time to time as elected by the Borrower pursuant to
Section 2.02, on any Business Day during the period from the Amendment No. 59
Effective Date until the Maturity Date with respect to such New Revolving Credit Lender’s
applicable New Revolving Credit Commitment, in an aggregate Principal Amount not to exceed
at any time outstanding the amount of such Lender’s New Revolving Credit Commitment
at such time; provided that after giving effect to any New Revolving Credit Borrowing,
the aggregate Outstanding Amount of the New Revolving Credit Loans of any Lender, plus
such Lender’s Pro Rata Share or other applicable share provided for under this Agreement of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Pro Rata Share or other applicable share provided for under this Agreement of the Outstanding Amount of all Swing
Line Loans shall not exceed such Lender’s New Revolving Credit Commitment; provided further that (i) the Euros
Outstanding shall not exceed the Euro Sublimit, (ii) the Sterling Outstanding shall not exceed the Sterling Sublimit and (iii) the
Yen Outstanding shall not exceed the Yen Sublimit . Within the limits of each Lender’s Revolving Credit Commitments, and subject
to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(c), prepay under Section 2.05,
and reborrow under this Section 2.01(c). Revolving Credit Loans denominated in Dollars may be Base Rate Loans, RFR Loans or
Term SOFR Loans, as further provided herein. Any existing Revolving Credit Loans outstanding on the Amendment No. 59
Effective Date shall be continued as Revolving Credit Loans hereunder; provided that the existing Revolving Credit Loans of each
New Revolving Credit Lender will be reclassified as New
Revolving Credit Loans hereunder.
SECTION 2.02 Borrowings,
Conversions and Continuations of Loans.
(a) Each
Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type to the other, and
each continuation of RFR Loans or Term SOFR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent,
which may be given by telephone. Each such notice must be received by the Administrative Agent not later than (i) 1:00 p.m. New
York City time three Business Days prior to the requested date of any Borrowing or continuation of RFR Loans or any conversion of Base
Rate Loans to RFR Loans, in each case other than RFR Loans denominated in Yen, (ii) 1:00 p.m. New York City time five Business
Days prior to the requested date of any Borrowing or continuation of TIBOR Rate Loans denominated in Yen or any conversion of Base Rate
Loans to TIBOR Rate Loans denominated in Yen, (iii) 1:00 p.m. New York City time four Business Days prior to the requested date
of any Borrowing or continuation of SONIA Rate Loans denominated in Sterling or any conversion of Base Rate Loans to SONIA Rate Loans
denominated in Sterling, (iv) 11:00 a.m. New York City Time three Business Days prior to the requested date of any Borrowing
or continuation of Term SOFR Loans or any conversion of Base Rate Loans to Term SOFR Loans and,
(v) 1:00 p.m. New
York City time on the requested date of
any Borrowing of Base Rate Loans and (vi) if applicable, 12:00 noon New York City time on the requested date of any Borrowing
of Base Rate Loans or (if applicable) Daily SOFR Loans; provided that the notice
referred to in subclause (i) above may be delivered (x) no later than one (1) Business
Day prior to the Closing Date in the case of initial Credit Extensions denominated in Dollars and (y)based
on such shorter period of time as may be agreed to by the Administrative Agent in the case of the Borrowing of Initial B-3-5
Dollar Term Loans on the Amendment No. 49
Effective Date. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of
the Borrower. Except as provided in Section 2.14(a), each Borrowing of, conversion to or continuation of RFR Loans or Term
SOFR Loans or (if applicable) Daily SOFR Loans shall be in a minimum principal amount of (A) if such RFR Loan or Term SOFR Loan is
denominated in Dollars, $2,000,000, or a whole multiple of $1,000,000 in excess thereof, (B) if such SONIA Rate Loan is denominated
in Sterling, £1,000,000, or a whole multiple of £500,000 in excess thereof, (C) if such RFR Loan is denominated in euros,
€2,000,000, or a whole multiple of €1,000,000 in excess thereof and (D) if such RFR Loan is denominated in Yen, ¥2,000,000,000,
or a whole multiple of ¥1,000,000,000 in excess thereof. Except as provided in Sections 2.03(c),
2.04(c), 2.14(a) or the last sentence of this paragraph, each Borrowing of or conversion to Base Rate
Loans or Daily SOFR Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Term Borrowing of a
particular Class, a Revolving Credit Borrowing, a conversion of Term Loans of any Class or Revolving Credit Loans from one Type to
the other, or a continuation of RFR Loans or Term SOFR Loans, (ii) the requested date of the Borrowing, conversion or continuation,
as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the
Type of Loans to be borrowed or to which existing Term Loans of a Class or Revolving Credit Loans are to be converted, (v) in
the case of a Revolving Credit Borrowing, the relevant Approved Currency in which such Revolving Credit Borrowing is to be denominated
and (vi) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify an Approved Currency
of a Loan in a Committed Loan Notice, such Loan shall be made in Dollars. If the Borrower fails to specify a Type of Loan in a Committed
Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Term Loans or Revolving Credit
Loans shall be made as or converted to (x) in the case of any Loan denominated in Dollars, Base Rate Loans or (y) in the case
of any Loan denominated in an Approved Foreign Currency, RFR Loans in the Approved Currency having an Interest Period of one month, as
applicable. Any such automatic conversion to Base Rate Loans or one-month RFR Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable RFR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of RFR Loans or Term SOFR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one (1) month. No Loan may be converted into or continued as a Loan denominated in another Approved
Currency, but instead must be prepaid in the original Approved Currency or reborrowed in another Approved Currency.
(b) Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and Approved Currency) of
its Pro Rata Share or other applicable share provided for under this Agreement of the applicable Class of Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender
shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not
later than (i) 1:00 p.m. (New York City time) on the Business Day specified in the applicable Committed Loan Notice for any
Borrowing of RFR Loans denominated in Dollars or Term SOFR Loans, (ii) 8:00 a.m. (New York City time) on the Business Day
specified in the applicable Committed Loan Notice for any Borrowing of RFR Loans denominated in an Approved Foreign Currency and (iii) 2:00 p.m3:00 p.m. (New
York City time) on the Business Day specified in the applicable Committed Loan Notice for any Borrowing of Base Rate Loans. The Administrative
Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer
of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) Except
as otherwise provided herein, a Term SOFR Loan or RFR Loan may be continued or converted only on the last day of an Interest Period for
such Term SOFR Loan or RFR Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During
the existence of an Event of Default, the Administrative Agent or the Required Lenders may require that no Loans in any Approved Currency
may be converted to or continued as Term SOFR Loans or RFR Loans, as applicable, and the Required Lenders may demand that any or all of
the then outstanding Term SOFR Loans or RFR Loans, as applicable, denominated in an Approved Foreign Currency be prepaid, or redenominated
into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto.[Reserved].
(d) The
Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Term
SOFR Loans or RFR Loans upon determination of such interest rate. The determination of Term SOFR or any RFR by the Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower and the Lenders of any change in the Prime Rate used in determining the Base Rate promptly following the announcement
of such change.
(e) After
giving effect to all Term Borrowings, all Revolving Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from one
Type to the other, and all continuations of Term Loans or Revolving Credit Loans as the same Type, there shall not be more than fifteen
(15) Interest Periods in effect.;
provided that after the establishment of any new Class of Loans pursuant to an Incremental
Amendment, Refinancing Amendment or Extension Amendment,
the number of Interest Periods otherwise permitted by this Section 2.02(e) shall increase by three Interest Periods for each
applicable Class so established.
(f) The
failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender
to make the Loan to be made by such other Lender on the date of any Borrowing.
(g) Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, the parties hereto
agree that (i) to the extent any Loan bearing interest at the Eurocurrency Rate (as such term was defined in this Agreement prior
to the Amendment No. 7 Effective Date) is outstanding on the Amendment No. 7 Effective Date, such Loan shall continue to bear
interest at the Eurocurrency Rate until the end of the current Interest Period (as such term was defined in this Agreement prior to the
Amendment No. 7 Effective Date) applicable to such Loan, (ii) any request for a new Eurocurrency Rate Loan (as such term was
defined in this Agreement prior to the Amendment No. 7 Effective Date) or a continuation of an existing Eurocurrency Rate Loan, in
each case denominated in Dollars, shall be deemed to be a request for a new Loan bearing interest at Term SOFR and (iii) at the end
of the current Interest Period with respect to any Eurocurrency Rate Loan, denominated in an Approved Currency other than Dollars, such
Loan shall be converted to an RFR Loan.
SECTION 2.03 Letters
of Credit.
(a) The
Letter of Credit Commitment.
(i) Subject
to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the other Revolving
Credit Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing
Date until the Letter of Credit Expiration Date to issue Letters of Credit at sight denominated in any Approved Currency for the account
of the BorrowerHoldings
or any Restricted Subsidiary of the Borrower and to amend or renew Letters of Credit
previously issued by it, in accordance with Section 2.03(b), and (2) to honor drafts under the Letters of Credit and
(B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03;
provided that, subject to clause (p) below, no L/C Issuer shall be obligated to make any L/C Credit Extension with respect
to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Revolving Credit Exposure of any Revolving Credit Lender would exceed such Lender’s Revolving Credit Commitment,
(y) the Outstanding Amount of the L/C Obligations in
respect of Letters of Credit issued by such L/C Issuer would exceed such L/C Issuer’s L/C Commitment or (z) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit Sublimit or (z) the Letter
of Credit Percentage of any L/C Issuer would exceed
the Letter of Credit Percentage for such L/C Issuer; provided further that (i) the
Euros Outstanding shall not exceed the Euro Sublimit, (ii) the Sterling Outstanding shall not exceed the Sterling Sublimit and (iii) the
Yen Outstanding shall not exceed the Yen Sublimit. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s
ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to be issued hereunder in the name of the Borrower for the benefit of the Borrower or Subsidiary
of Holdings in whose name such Existing Letter of Credit is outstanding
immediately prior to the Amendment No. 9
Effective Date and shall constitute Letters of Credit subject to the terms hereof.
(ii) An
L/C Issuer shall be under no obligation to issue any Letter of Credit if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer
from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or direct that such L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not
in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on
the Closing Date (for which such L/C Issuer is not otherwise compensated hereunder);
(B) subject
to Section 2.03(b)(iii) and Section 2.03(a)(ii)(C), the expiry date of such requested Letter of Credit would
occur morelater
than the earlier of (x) twelve months
after the date of issuance or last renewal or
(y) the fifth Business Day prior to the Maturity Date of the
Revolving Credit Facility, unless (1) each Appropriate Lender has approved of such expiration date or (2) the L/C Issuer
thereof has approved of such expiration date and the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit
has been Cash Collateralized or backstopped pursuant to arrangements reasonably satisfactory to such L/C Issuer;
(C) the
expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the applicable Revolving
Credit Lenders have approved such expiry date;
(D) the
issuance of such Letter of Credit would violate any Laws binding upon such L/C Issuer or
would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(E) the
L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency; or
(F) any
Revolving Credit Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery
of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s
actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C
Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iii) An
L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time
to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(iv) Each
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed
to be issued by it and any Letter of Credit Issuance Request (and any other document, agreement or instrument entered into by such L/C
Issuer and the Borrower or in favor of such L/C Issuer) pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to each L/C Issuer.
(v) The
Borrower may, at any time and from time to time, reduce the L/C Commitment of
any L/C Issuer with the consent of such
L/C Issuer and upon notice to the Administrative Agent; provided that the Borrower shall not reduce the L/C Commitment of any L/C Issuer
if, after giving effect to such reduction, the conditions set forth in clause (i) above would not be satisfied.
(b) Procedures
for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (with a copy
to the Administrative Agent) in the form of a Letter of Credit Issuance Request, appropriately completed and signed by a Responsible Officer
of the Borrower or his/her delegate or designee. Such Letter of Credit Issuance Request must be received by the relevant L/C Issuer and
the Administrative Agent not later than 1:00 p.m. (New York City time) at least two (or,
if the relevant L/C Issuer is Royal Bank of Canada or any of its Affiliates or branches, three) Business Days prior to the proposed
issuance date or date of amendment, as the case may be; or, in each case, such other date and time as the relevant L/C Issuer may agree
in a particular instance in its sole discretion. In the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Issuance Request shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer: (a) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day); (b) the amount thereof; (c) the relevant Approved Currency
in which such Letter of Credit is to be denominated; (d) the expiry date thereof; (e) the name and address of the beneficiary
thereof; (f) the documents to be presented by such beneficiary in case of any drawing thereunder; (g) the full text of any certificate
to be presented by such beneficiary in case of any drawing thereunder; and (h) such other matters as the relevant L/C Issuer may
reasonably request. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Issuance Request
shall specify in form and detail reasonably satisfactory to the relevant L/C Issuer (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other
matters as the relevant L/C Issuer may reasonably request. If
requested by the applicable L/C Issuer, the Borrower shall also submit a letter of credit application to the extent required by the applicable
L/C Issuer using such L/C Issuer’s standard form for any request for an initial issuance of a Letter of Credit or amendment of an
outstanding Letter of Credit, as applicable.
(ii) Promptly
after receipt of any Letter of Credit Issuance Request, the relevant L/C Issuer will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received a copy of such Letter of Credit Issuance Request from the Borrower and, if not,
such L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt by the relevant L/C Issuer of confirmation from
the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or,
if applicable, the Restricted Subsidiary, or enter into the applicable amendment, as the case may be. Immediately upon the issuance
of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the relevant L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro
Rata Share or other applicable share provided for under this Agreement times the amount of such Letter of Credit.
(iii) If
the Borrower so requests in any applicable Letter of Credit Issuance Request, the relevant L/C Issuer shall agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any
such Auto-Extension Letter of Credit must permit the relevant L/C Issuer to prevent any such extension at least once in each twelve month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than
a number of days (the “Non-Extension Notice Date”) prior to the last day of such twelve month period to be agreed upon
by the relevant L/C Issuer and the Borrower at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C
Issuer, the Borrower shall not be required to make a specific request to the relevant L/C Issuer for any such extension. Once an Auto-Extension
Letter of Credit has been issued, the applicable Lenders shall be deemed to have authorized (but may not require) the relevant L/C Issuer
to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided
that the relevant L/C Issuer shall not permit any such extension if (A) the relevant L/C Issuer has determined that it would have
no obligation at such time to issue such Letter of Credit in its extended form under the terms hereof (by reason of the provisions of
Section 2.03(a)(ii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is five (5) Business Days before the Non-Extension Notice Date from the Administrative Agent, the Borrower that
one or more of the applicable conditions specified in Section 4.02 is not then satisfied.
(iv) Promptly
after issuance of any Letter of Credit or any amendment to a Letter of Credit, the relevant L/C Issuer will also deliver to the Borrower
and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings
and Reimbursements; Funding of Participations.
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the relevant L/C Issuer shall
notify promptly the Borrower and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Approved Foreign
Currency, the Borrower shall reimburse the L/C Issuer in such Approved Currency, unless the L/C Issuer (at its option) shall have specified
in such notice that it will require reimbursement in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter
of Credit denominated in an Approved Foreign Currency, the L/C Issuer shall notify the CompanyBorrower
of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. Not later than 1:00 p.m. (New
York City time), in the case of a drawing in Dollars, or 2:00 p.m. (London time) (or, if earlier, 9:00 a.m. New York cCity
time), in the case of a drawing in an Approved Foreign Currency, on (1) the next Business Day immediately following the date of any
honoring of a drawing by an L/C Issuer under a Letter of Credit that the Borrower receives notice thereof (each such date, an “Honor
Date”), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such
drawing in the relevant Approved Currency; provided that the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with a Revolving Credit Borrowing under the Revolving
Credit Facility or a Swing Line Borrowing under the Swing Line Facility in an equivalent
amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting
Revolving Credit Borrowing or Swing Line Borrowing, as applicable. In the event that
(x) a drawing denominated in an Approved Foreign Currency is to be reimbursed in Dollars pursuant to the first sentence of this Section 2.03(c)(i) and
(y) the Dollar amount paid by the Borrower, whether on or after the Honor Date, shall not be adequate on the date of that payment
to purchase in accordance with normal banking procedures a sum denominated in the applicable Approved Foreign Currency equal to the drawing,
the Borrower agrees, as a separate and independent obligation, to indemnify the L/C Issuer for the loss resulting from its inability on
that date to purchase the Approved Currency in the full amount of the drawing. If the Borrower fails to so reimburse such L/C Issuer by
such time, the Administrative Agent shall promptly notify each Appropriate Lender of the Honor Date, the amount of the unreimbursed drawing
(expressed in Dollars in the amount of the Dollar Equivalent thereof) (the “Unreimbursed Amount”), and the amount of
such Appropriate Lender’s Pro Rata Share or other applicable share provided for under this Agreement thereof. In such event, the
Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, Term SOFR Loans or RFR Loans, as applicable, but subject to the amount of the unutilized portion of the Revolving
Credit Commitments of the Appropriate Lenders and the conditions set forth in Section 4.02 (other than the delivery of a Committed
Loan Notice). Any notice given by an L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
(ii) Each
Appropriate Lender (including any Lender acting as an L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the relevant L/C Issuer in Dollars at the Administrative Agent’s
Office for Dollar-denominated payments in an amount equal to its Pro Rata Share or other applicable share provided for under this Agreement
of the Unreimbursed Amount not later than 2:00 p.m. (New York City time) on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Appropriate Lender that so makes funds available
shall be deemed to have made a Revolving Credit Loan that is a Base Rate Loan, Term SOFR Loan or RFR Loan, as applicable, to the Borrower
in such amount. The Administrative Agent shall promptly remit the funds so received to the relevant L/C Issuer in Dollars.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans, Term SOFR Loans or
RFR Loans, as applicable, because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the relevant L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest (which begins
to accrue upon funding by the L/C Issuer) at the Default Rate for Revolving Credit Loans. In such event, each Appropriate Lender’s
payment to the Administrative Agent for the account of the relevant L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 2.03.
(iv) Until
each Appropriate Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse
the relevant L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share or
other applicable share provided for under this Agreement of such amount shall be solely for the account of the relevant L/C Issuer.
(v) Each
Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.03(c), shall survive
termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the applicable L/C Issuer, the
Administrative Agent or the Collateral Agent,
as the case may be, and shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against the relevant L/C Issuer, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the relevant L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter
of Credit, together with interest as provided herein.
(vi) If
any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the relevant L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified
in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is
immediately available to such L/C Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect, plus any reasonable
administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. A certificate of the
relevant L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under
this Section 2.03(c)(vi) shall be conclusive absent manifest error.
(d) Repayment
of Participations.
(i) If,
at any time after an L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s
L/C Advance in respect of such payment in accordance with Section 2.03(c), the Administrative Agent receives for the account
of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its Pro Rata Share or other applicable share provided for under this Agreement hereof (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If
any payment received by the Administrative Agent for the account of an L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into
by such L/C Issuer in its discretion), each Appropriate Lender shall pay to the Administrative Agent for the account of such L/C Issuer
its Pro Rata Share or other applicable share provided for under this Agreement thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable
OvernightFederal Funds
Rate, plus any reasonable administrative, processing or similar fees customarily charged by the Administrative Agent in connection with
the foregoing.
(e) Obligations
Absolute. The obligation of the Borrower to reimburse the relevant L/C Issuer for each drawing under each Letter of Credit issued
by it and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances, including the following:
(i) any
lack of validity or enforceability of such Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that any Loan Party may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the relevant
L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such Letter of Credit;
(iv) any
payment by the relevant L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the relevant L/C Issuer under such Letter of Credit
to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver
or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;
(v) any
exchange, release or non-perfection of any Collateral, or any release or amendment or waiver of or consent to departure from the Guaranty
or any other guarantee, for all or any of the Obligations of any Loan Party in respect of such Letter of Credit;
(vi) any
adverse change in the relevant exchange rates or in the availability of Dollars
or the relevant Approved Foreign Currency to the BorrowerHoldings
or any Subsidiary or in the relevant currency markets generally; and
(vii) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Loan Party;
provided
that the foregoing shall not excuse any L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that
are caused by such L/C Issuer’s gross negligence or willful misconduct as determined in a final and non-appealable judgment by a
court of competent jurisdiction when determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof.
(f) Role
of L/C Issuers. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the relevant L/C Issuer shall
not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the L/C Issuers, any Agent-Related Person nor any of the respective correspondents, participants
or assignees of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Lenders holding a majority of the Revolving Credit Commitments, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful misconduct as determined in a final and non-appealable judgment
by a court of competent jurisdiction; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument
related to any Letter of Credit or Letter of Credit Issuance Request. The Borrower hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit; provided that this assumption is not intended to,
and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at
law or under any other agreement. None of the L/C Issuers, any Agent-Related Person, nor any of the respective correspondents, participants
or assignees of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses (i) through
(vii) of Section 2.03(e) 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 L/C Issuer; provided that anything in such clauses
to the contrary notwithstanding, the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrower,
to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves wereare
caused by such L/C Issuer’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 willful misconduct or gross negligence on
the part of the relevant L/C Issuer or such L/C Issuer’s willful or grossly negligent failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit, in each case,
as determined in a final and non-appealable judgment by a court of competent jurisdiction,
such L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance and not in limitation of the
foregoing, each L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and no L/C Issuer shall be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason,
or refuse to accept and make payment upon such documents if such documents are not in compliance with the terms of such Letter of Credit.
(g) Cash
Collateral. If (i) as of the Letter of Credit Expiration Date, any Letter of Credit may for any reason remain outstanding and
partially or wholly undrawn (and without limiting the requirements of Section 2.03(a)(ii)(C)), (ii) any Event of Default
occurs and is continuing and the Administrative Agent or the Lenders holding a majority of the Revolving Credit Commitments, as applicable,
require the Borrower to Cash Collateralize the L/C Obligations pursuant to Section 8.02 or (iii) an Event of Default
set forth under Section 8.01(f) occurs and is continuing, the Borrower shall Cash Collateralize the then Outstanding
Amount of all L/C Obligations (in an amount equal to such Outstanding Amount determined as of the date of such Event of Default or the
Letter of Credit Expiration Date, as the case may be), and shall do so not later than 2:00 p.m., New York City time on (x) in the
case of the immediately preceding clauses (i) and (ii), (1) the Business Day that the Borrower receives notice thereof, if such
notice is received on such day prior to 12:00 noon, New York City time or (2) if clause (1) above does not apply, the Business
Day immediately following the day that the Borrower receives such notice and (y) in the case of the immediately preceding clause
(iii), the Business Day on which an Event of Default set forth under Section 8.01(f) occurs or, if such day is not a
Business Day, the Business Day immediately succeeding such day. At any time that there shall exist a Defaulting Lender, immediately upon
the request of the Administrative Agent, or
the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to the Administrative
Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.17(a)(iv) and
any Cash Collateral provided by the Defaulting Lender). For purposes hereof, “Cash Collateralize” means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the relevant L/C Issuer and the Appropriate Lenders, as collateral
for the L/C Obligations, cash or deposit account balances (“Cash Collateral”) pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent and the relevant L/C Issuer (which documents are hereby consented to by
the Appropriate Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the Administrative Agent,
for the benefit of the L/C Issuers and the Revolving Credit Lenders of the applicable Facility, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in a Cash Collateral
Account and may be invested in readily available Cash Equivalents as directed by the Borrower. If at any time the Administrative Agent
determines that any funds held as Cash Collateral are expressly subject to any right or claim of any Person other than the Administrative
Agent (on behalf of the Secured Parties) or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C
Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds
to be deposited and held in the Cash Collateral Account, an amount equal to the excess of (a) such aggregate Outstanding Amount over
(b) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent reasonably determines to be free
and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such
funds shall be applied, to the extent permitted under applicable Law, to reimburse the relevant L/C Issuer. To the extent the amount of
any Cash Collateral exceeds the then Outstanding Amount of such L/C Obligations and so long as no Event of Default has occurred and is
continuing, the excess shall be refunded to the Borrower. To the extent any Event of Default giving rise to the requirement to Cash Collateralize
any Letter of Credit pursuant to this Section 2.03(g) is cured or otherwise waived by the Required Lenders, then so long
as no other Event of Default has occurred and is continuing, all Cash Collateral pledged to Cash Collateralize such Letter of Credit shall
be refunded to the Borrower.
(h) Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of the Revolving Credit Lenders for the applicable
Revolving Credit Facility (in accordance with their Pro Rata Share or other applicable share provided for under this Agreement) a Letter
of Credit fee in Dollars for each Letter of Credit issued pursuant to this Agreement equal to the Applicable Rate for Revolving Credit
Loans timesthat
are Term SOFR Loans, multiplied by the Dollar Equivalent of the daily maximum amount then available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit if such maximum amount increases periodically
pursuant to the terms of such Letter of Credit); provided, however, any Letter of Credit fees otherwise payable for the
account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable, to the maximum extent permitted by applicable
Law, to the other Lenders in accordance with the upward adjustments in their respective Pro Rata Shares allocable to such Letter of Credit
pursuant to Section 2.17(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for its own account. Such
Letter of Credit fees shall be computed on a quarterly basis in arrears. Such Letter of Credit fees shall be due and payable in Dollars
on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in any Applicable Rate
for Revolving Credit Loans during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by such
Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
(i) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrower shall pay directly to each L/C Issuer for its own
account, in Dollars, a fronting fee with respect to each Letter of Credit issued by it equal to 0.125% per annum of the Dollar Equivalent
of the statedaggregate
face amount of such Letter of Credit). Such fronting fees shall be computed on a quarterly basis in arrears. Such fronting fees
shall be due and payable in Dollars on the last Business Day of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. In addition,
the Borrower shall pay directly to each L/C Issuer for its own account, in Dollars, with respect to each Letter of Credit issued by it
the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating
to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable within ten
(10) Business Days of demand and are nonrefundable.
(j) Conflict
with Letter of Credit Issuance Request. Notwithstanding anything else to the contrary in this Agreement or any Letter of Credit Issuance
Request, in the event of any conflict between the terms hereof and the terms of any Letter of Credit Issuance Request, the terms hereof
shall control.
(k) Addition
of an L/C Issuer. A Revolving Credit Lender may become an additional L/C Issuer hereunder pursuant to a written agreement among the
Borrower, the Administrative Agent and such Revolving Credit Lender. The Administrative Agent shall notify the Revolving Credit Lenders
of any such additional L/C Issuer.
(l) Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to
any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in
the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
(m) Reporting.
Each L/C Issuer will report in writing to the Administrative Agent (i) on the first Business Day of each calendar month, the aggregate
face amount of Letters of Credit issued by it and outstanding as of the last Business Day of the preceding calendar month (and on such
other dates as the Administrative Agent may request), (ii) on or prior to each Business Day on which such L/C Issuer expects to issue,
amend, renew or extend any Letter of Credit, the date of such issuance or amendment, and the aggregate face amount of Letters of Credit
to be issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension
(and such L/C Issuer shall advise the Administrative Agent on such Business Day whether such issuance, amendment, renewal or extension
occurred and whether the amount thereof changed), (iii) on each Business Day on which such L/C Issuer makes any L/C Disbursement,
the date and amount of such L/C Disbursement and (iv) on any Business Day on which the Borrower fails to reimburse an L/C Disbursement
required to be reimbursed to such L/C Issuer on such day, the date and amount of such failure.
(n) Provisions
Related to Letters of Credit in respect of Extended Revolving Credit Commitments. If the Letter of Credit Expiration Date in respect
of any tranche of Revolving Credit Commitments occurs prior to the expiry date of any Letter of Credit, then (i) if consented to
by the L/C Issuer which issued such Letter of Credit, if one or more other tranches of Revolving Credit Commitments in respect of which
the Letter of Credit Expiration Date shall not have so occurred are then in effect, such Letters of Credit for which consent has been
obtained shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders
to purchase participations therein and to make Revolving Credit Loans and payments in respect thereof pursuant to Sections 2.03(c) and
(d)) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating
tranches up to an aggregate amount not to exceed the aggregate amount of the unutilized Revolving Credit Commitments thereunder at such
time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated
pursuant to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 2.03(g).
Upon the maturity date of any tranche of Revolving Credit Commitments, the sublimit for Letters of Credit may be reduced as agreed between
the L/C Issuers and the Borrower, without the consent of any other Person.
(o) Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations
of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder
for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the
account of Restricted Subsidiaries inures to the benefit of the Borrower and
Holdings, and that the Borrower’s and
Holdings’ business derives substantial benefits from the businesses of such Restricted Subsidiaries.
(p) On
the Amendment No. 5 Effective Date, the L/C Obligations in any issued and outstanding Letters of Credit shall be reallocated so that
after giving effect thereto the Revolving Credit Lenders shall share ratably in such L/C Obligations in accordance with their Pro Rata
Share of the aggregate Revolving Credit Commitments. Thereafter, L/C Obligations in any newly-issued Letters of Credit shall be allocated
in accordance with each Revolving Credit Lender’s Pro Rata Share of the aggregate Revolving Credit Commitments.
SECTION 2.04 Swing
Line Loans.
(a) The
Swing Line. Subject to the terms and conditions set forth herein, Credit Suisse AG, Cayman Island Branch, in its
capacity as Swing Line Lender, agrees to make loans in Dollars to the Borrower (each such loan, a “Swing Line Loan”),
from time to time on any Business Day during the period beginning on the Business Day after the Closing Date and until the
Maturity Date of the Revolving Credit Facility in an aggregate principal amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata
Share or other applicable share provided for under this Agreement of the Outstanding Amount of Revolving Credit Loans and L/C Obligations
of the Lender acting as Swing Line Lender, may exceed the amount of such Swing Line Lender’s Revolving Credit Commitment; provided
that, after giving effect to any Swing Line Loan, (i) the Revolving Credit Exposure shall not exceed the aggregate Revolving Credit
Commitments and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Pro Rata
Share or other applicable share provided for under this Agreement of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Pro Rata Share or other applicable share provided for under this Agreement of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Revolving Credit Commitment then in effect; provided, further, that the Borrower shall not use the proceeds
of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04.
Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing
Line Loan in an amount equal to the product of such Lender’s Pro Rata Share or other applicable share provided for under this Agreement
times the amount of such Swing Line Loan.
(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line
Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. New York City time on the requested
borrowing date and shall specify (i) the principal amount to be borrowed, which principal amount
shall be a minimum of $500,000 (and any amount in excess of $500,000 shall be in integral multiples of $100,000) and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender
and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed
by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any Swing
Line Loan Notice (by telephone or in writing), the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative
Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m. New York City time on
the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender
will, not later than 3:00 p.m. New York City time on the borrowing date specified in such Swing Line Loan Notice, make the amount
of its Swing Line Loan available to the Borrower. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere
in this Agreement, the Swing Line Lender shall not be obligated to make any Swing Line Loan at a time when a Revolving Credit Lender is
a Defaulting Lender unless the Swing Line Lender has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate
the Swing Line Lender’s Fronting Exposure (after giving effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender’s
or Defaulting Lenders’ participation in such Swing Line Loans, including by Cash Collateralizing, or obtaining a backstop letter
of credit from an issuer reasonably satisfactory to the Swing Line Lender to support, such Defaulting Lender’s or Defaulting Lenders’
Pro Rata Share of the outstanding Swing Line Loans.
(c) Refinancing
of Swing Line Loans.
(i) The Swing
Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes
such Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such
Lender’s Pro Rata Share or other applicable share provided for under this Agreement of the amount of Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the aggregate Revolving Credit Commitments and the conditions set
forth in Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share
or other applicable share provided for under this Agreement of the amount specified in such Committed Loan Notice available to the Administrative
Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments
not later than 1:00 p.m. New York City time on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.
The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line
Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit
Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall
be deemed payment in respect of such participation.
(iii) If
any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required
to be paid by the Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any reasonable administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. A certificate of the Swing Line
Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall
be conclusive absent manifest error.
(iv) Each
Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower
or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation
to make Revolving Credit Loans pursuant to this Section 2.04(c) (but not to purchase and fund risk participations in Swing Line
Loans) is subject to the conditions set forth in Section 4.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment
of Participations.
(i) At any time
after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share or other applicable
share provided for under this Agreement of such payment (appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(ii) If
any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into
by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Pro Rata Share or other
applicable share provided for under this Agreement thereof on demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender.
(e) Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest
on the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan, Term SOFR Loan, RFR Loan or risk participation pursuant
to this Section 2.04 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.
(f) Payments
Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing
Line Loans directly to the Swing Line Lender.
(gp) Provisions
Related to Extended Revolving Credit Commitments. If the maturity date shall have occurred in respect
of any tranche ofIn connection with the establishment of
any Extended Revolving Credit Commitments (the “Expiring Credit Commitment”)
at a time when another tranche or tranches ofor Other
Revolving Credit Commitments is or are in effect with a longer maturity date (each a “Non-Expiring
Credit Commitment” and collectively, the “Non-Expiring Credit Commitments”), then with respect to each outstanding
Swing Line Loan, if consented to by the applicable Swing Line Lender, on the earliest occurring maturity date such Swing Line Loan shall
be deemed reallocated to the tranche or tranches of the Non-Expiring Credit Commitments on a pro rata basis; provided that (x) to
the extent that the amount of such reallocation would cause the aggregate credit exposure to exceed the aggregate amount of such Non-Expiring
Credit Commitments, immediately prior to such reallocation the amount of Swing Line Loans to be reallocated equal to such excess shall
be repaid or Cash Collateralized and (y) notwithstanding the foregoing, if a Default or Event of Default has occurred and is continuing,
the Borrower shall still be obligated to pay Swing Line Loans allocated to the Revolving Credit Lenders holding the Expiring Credit Commitments
at the maturity date of the Expiring Credit Commitment or if the Loans have been accelerated prior to the maturity date of the Expiring
Credit Commitment. Upon the maturity date of any tranche of Revolving Credit Commitments, the sublimit for Swing Line Loans may be reduced
as agreed between the Swing Line Lender and the Borrower, without the consent of any other Person.and
subject to the availability of unused Commitments with respect to such Class and the satisfaction of the
conditions set forth in Section 4.02, the Borrower may with
the written consent of the applicable L/C Issuer designate any outstanding Letter of Credit to be a Letter of Credit issued pursuant
to such Class of Extended Revolving Credit Commitments or Other Revolving Credit Commitments. Upon such designation, such Letter
of Credit shall no longer be deemed to be issued and outstanding under such prior Class and shall instead be deemed to be issued
and outstanding under such Class of Extended Revolving Credit Commitments or Other Revolving Credit Commitments.
(q) Replacement
of an L/C Issuer. An L/C Issuer may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the
replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement of an L/C
Issuer. From and after the effective date of any such replacement, (x) the successor L/C Issuer shall have all the rights and obligations
of the L/C Issuer being replaced under this Agreement with respect to Letters of Credit to be issued thereafter and (y) references
herein to the term “L/C Issuer” shall be deemed to refer to such successor or to any previous L/C Issuer, or to such successor
and all current and previous L/C Issuers, as the context shall require. After the replacement of an L/C Issuer hereunder, the replaced
L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer 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.
(r) Resignation
of an L/C Issuer.
Subject to the appointment and acceptance of a successor L/C Issuer, any L/C Issuer may resign as an L/C Issuer at any time upon thirty
days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such L/C Issuer shall be replaced
in accordance with Section 2.03(q) above.
(s) Existing
Letters of Credit. The parties hereto agree that the Existing Letters of Credit shall be deemed Letters of Credit for all purposes
under this Agreement, without any further action by the Borrower.
(t) Unless
otherwise expressly agreed by an L/C Issuer and the Borrower when a
Letter of Credit is issued by such L/C
Issuer, the rules of the ISP shall be stated therein to apply to each Letter of Credit. Notwithstanding the foregoing, no L/C Issuer
shall be responsible to the Borrower for, and such L/C Issuer’s rights and remedies against the Borrower shall not be impaired by,
any action or inaction of such L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be
applied to any Letter of Credit or this Agreement, including the Laws or any order of a jurisdiction where such L/C Issuer or the beneficiary
is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary
of the International Chamber of Commerce Banking Commission, the Bankers Association for Finance and Trade (BAFT), or the Institute of
International Banking Law & Practice, whether or not any Letter of Credit chooses such Laws or practice rules.
SECTION 2.04 [Reserved].
SECTION 2.05 Prepayments.
(a) Optional.
(i) The
Borrower may, upon, subject to clause (iii) below, written notice to the Administrative Agent by the Borrower, at any time or from
time to time voluntarily prepay Term Loans of any Class and Revolving Credit Loans in whole or in part without premium or penalty
(subject to Section 2.05(a)(iv); provided that (1) such notice must be received by the Administrative Agent not
later than 1:00 p.m. New York City time (A) three Business Days prior to any date of prepayment of RFR Loans (other than SONIA
Rate Loans) or Term SOFR Loans or four Business Days prior to any date of prepayment of SONIA Rate Loans, and (B) one (1) Business
Day prior to any prepayment of Base Rate Loans or Daily SOFR Loans; (2) any prepayment of RFR Loans or Term SOFR Loans shall be in
a minimum Principal Amount of $2,000,000 or £2,000,000 (respectively), or a whole multiple of $1,000,000 or £1,000,000 (respectively)
in excess thereof; and (3) any prepayment of Base Rate Loans or Daily SOFR Loans shall be in a minimum Principal Amount of $1,000,000
or a whole multiple of $500,000 in excess thereof or, in each case, if less, the entire Principal Amount thereof then outstanding. Each
such notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative
Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata
Share or other applicable share provided for under this Agreement of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a RFR Loan or a Term SOFR Loan shall be accompanied by all accrued interest thereon to such date,
together with, in case of RFR Loans or Term SOFR Loans (solely limited to the Initial B-3 Dollar Term Loans), any additional amounts required
pursuant to Section 3.05. In the case of each prepayment of the Loans pursuant to this Section 2.05(a),
the Borrower may in its sole discretion select the Borrowing or Borrowings (and the order of maturity of principal payments) to be repaid,
and such payment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares or other applicable share
as provided for under this Agreement.
(ii) The
Borrower may, upon, subject to clause (iii) below, written notice to the Swing Line Lender (with a copy to the Administrative Agent),
at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (1) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. New York
City time on the date of the prepayment, and (2) any such prepayment shall be in a minimum Principal Amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify
the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein.
(ii) [reserved].
(iii) Notwithstanding
anything to the contrary contained in this Agreement, subject to the payment of any amounts owing pursuant
to Section 3.05 with respect to RFR Loans and Term SOFR Loans (solely limited to the Initial B-3 Dollar Term Loans), the
Borrower may rescind any notice of prepayment under Sections 2.05(a)(i) or
2.05(a)(ii) if such prepayment would have resulted from a refinancing of all or a portion of the applicable
Facility, which refinancing shall not be consummated or shall otherwise be delayed. Each prepayment of any Class of Term Loans pursuant
to this Section 2.05(a) shall be applied in an order of priority to repayments thereof required pursuant to Section 2.07(a) as
directed by the Borrower and, absent such direction, shall be applied in direct order of maturity to repayments thereof required pursuant
to Section 2.07(a).
(iv) (A) In
the event that, on or prior to the six-month anniversary of the Amendment No. 8 Effective Date, the Borrower (x) prepays, refinances,
substitutes or replaces any Initial B-4 Dollar Term Loans pursuant to a Repricing Initial
B-4 Dollar Term Loans Transaction (including, for avoidance of doubt, any prepayment made pursuant to Section 2.05(b)(iv) that
constitutes a Repricing Initial B-4 Dollar Term
Loans Transaction), or (y) effects any amendment, amendment and restatement or other modification of this Agreement resulting
in a Repricing Initial B-4 Dollar Term Loans Transaction,
the Borrower shall pay to the Administrative Agent, for the ratable account of each of the Initial B-4 Dollar Term Lender, (I) in
the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Initial B-4 Dollar Term Loans so prepaid,
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 applicable Initial B-4 Dollar Term Loans outstanding immediately prior to such amendment. If, on or prior to the six-month anniversary
of the Amendment No. 8 Effective Date, any Initial B-4 Dollar Term Lender that is a Non-Consenting Lender and is replaced pursuant
to Section 3.07(a) in connection with any amendment, amendment and restatement or other modification of this Agreement
resulting in a Repricing Initial B-4 Dollar Term
Loans Transaction, such Initial B-4 Dollar Term Lender (and not any Person who replaces such Initial B-4 Dollar Term Lender pursuant
to Section 3.07(a)) shall receive its pro rata portion (as determined immediately prior to it being so replaced) of the prepayment
premium or fee described in the preceding sentence. Such amounts shall be due and payable on the date of effectiveness of such Repricing
Initial B-4 Dollar Term Loans Transaction.;
and
(B) In
the event that, on or prior to the six-month anniversary of the Amendment No. 9 Effective Date, the Borrower (x) prepays, refinances,
substitutes or replaces any Initial B-5 Dollar Term Loans pursuant to a Repricing Initial B-5 Dollar Term Loans Transaction (including,
for avoidance of doubt, any prepayment made pursuant to Section 2.05(b)(iv) that constitutes a Repricing Initial B-5 Dollar
Term Loans Transaction), or (y) effects any amendment, amendment and restatement or other modification of this Agreement resulting
in a Repricing Initial B-5 Dollar Term Loans Transaction, the Borrower shall pay
to the Administrative Agent, for
the ratable account of each of the Initial
B-5 Dollar Term Lender, (I) in the case of clause (x), a prepayment premium of 1.00%
of the aggregate principal amount of the
Initial B-5 Dollar Term Loans so prepaid, 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
applicable Initial B-5 Dollar Term Loans outstanding immediately prior to such amendment. If, on or prior to the six-month anniversary
of the Amendment No. 9 Effective Date, any Initial B-5 Dollar Term Lender that is a Non-Consenting Lender and is replaced pursuant
to Section 3.07(a) in connection with any amendment, amendment and restatement or other modification of this Agreement resulting
in a Repricing Initial B-5 Dollar Term Loans Transaction, such Initial B-5 Dollar Term Lender (and not any Person who replaces such Initial
B-5 Dollar Term Lender pursuant to Section 3.07(a)) shall receive its pro rata portion (as determined immediately prior to it being
so replaced) of the prepayment premium or fee described in the preceding sentence. Such amounts shall be due and payable on the date of
effectiveness of such Repricing Initial B-5 Dollar Term Loans Transaction.
(v) Notwithstanding
anything in any Loan Document to the contrary, so long as no Event
of Default has occurred and is continuing and, only to the extent funded at a discount, no proceeds of Revolving Credit Borrowings
are applied to fund any such repayment, any Company Party may prepay the outstanding Term Loans (which shall, for the avoidance of doubt,
be automatically and permanently canceled immediately upon such prepayment) (or Holdings,
the Borrower or any of its Subsidiaries may purchase such outstanding Term Loans and immediately cancel them) on the following
basis:
(A) Any
Company Party shall have the right to make a voluntary prepayment of Term Loans at a discount to par pursuant to a Borrower Offer of Specified
Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers
(any such prepayment, the “Discounted Term Loan Prepayment”), in each case made in accordance with this Section 2.05(a)(v);
provided that no Company Party shall initiate any action under this Section 2.05(a)(v) in order to make a Discounted
Term Loan Prepayment unless (I) at least ten (10) Business Days shall have passed since the consummation of the most recent
Discounted Term Loan Prepayment as a result of a prepayment made by a Company Party on the applicable Discounted Prepayment Effective
Date; or (II) at least three Business Days shall have passed since the date the Company Party was notified that no Term Lender was
willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value,
as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of any Company Party’s election
not to accept any Solicited Discounted Prepayment Offers.
(B) (1)
Subject to the proviso to subsection (A) above, any Company Party may from time to time offer to make a Discounted Term Loan
Prepayment (the “Borrower Offer of Specified
Discount Prepayment”) by providing the Auction Agent with five (5) Business Days’ notice in the form of a
Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of
the Company Party, to (x) each Term Lender and/or (y) each Term Lender with respect to any Class of Term Loans on an individual
tranche basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount
Prepayment Amount”) with respect to each applicable tranche, the tranche or tranches of Term Loans subject to such offer and
the specific percentage discount to par (the “Specified Discount”) of such Term Loans to be prepaid (it being understood
that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different tranches of Term
Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.05(a)(v)(B)),
(III) the Specified Discount Prepayment Amount shall be in an aggregate principal
amount not less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such offer shall remain
outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with
a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned
by each such Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. (New York City time), on the third Business
Day after the date of delivery of such notice to such Lenders (the “Specified Discount Prepayment Response Date”).
(2) Each
Term Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether
or not it agrees to accept a prepayment of any of its applicable then outstanding Term Loans at the Specified Discount and, if so (such
accepting Lender, a “Discount Prepayment Accepting Lender”), the amount and the tranches of such Lender’s Term
Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting
Lender shall be irrevocable. Any Term Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the
Specified Discount Prepayment Response Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount
Prepayment.
(3) If
there is at least one Discount Prepayment Accepting Lender, the relevant Company Party will make a prepayment of outstanding Term Loans
pursuant to this paragraphsubsection
(B) to each Discount Prepayment Accepting Lender in accordance with the respective outstanding amount and tranches of Term Loans
specified in such Lender’s Specified Discount Prepayment Response given pursuant to subsection (21)
above; provided that if the aggregate principal amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting
Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting
Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and
the Auction Agent (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its reasonable
discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and
in any case within three Business Days following the Specified Discount Prepayment Response Date, notify (I) the relevant Company
Party of the respective Term Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal
amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment
Effective Date, and the aggregate principal amount and the tranches of Term Loans to be prepaid at the Specified Discount on such date
and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal
amount, tranche and Type of Term Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the
Auction Agent of the amounts stated in the foregoing notices to the Company Party and such Term Lenders shall be conclusive and binding
for all purposes absent manifest error. The payment amount specified in such notice to the Company Party shall be due and payable by such
Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(C) (1)
Subject to the proviso to subsection (A) above, any Company Party may from time to time solicit Discount Range Prepayment Offers
by providing the Auction Agent with five (5) Business Days’ notice in the form of a Discount Range Prepayment Notice; provided
that (I) any such solicitation shall be extended, at the sole discretion of such Company Party, to (x) each Term Lender and/or
(y) each Term Lender with respect to any Class of Term Loans on an individual tranche basis, (II) any such notice shall
specify the maximum aggregate principal amount of the relevant Term Loans (the “Discount Range Prepayment Amount”),
the tranche or tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount
Range”) of the principal amount of such Term Loans with respect to each relevant tranche of Term Loans willing to be prepaid
by such Company Party (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with
respect to different tranches of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms
of this Section 2.05(a)(v)(C)), (III) the Discount Range Prepayment Amount shall be in an aggregate principal
amount not less than $10,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by a
Company Party shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each
Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted
by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. (New York City time), on the third Business
Day after the date of delivery of such notice to such Lenders (the “Discount Range Prepayment Response Date”). Each
Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range
(the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding
Term Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Lender’s Term Loans
(the “Submitted Amount”) such Term Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose
Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to
have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount
Range.
(2) The
Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response
Date and shall determine (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its
sole reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this subsection (C).
The relevant Company Party agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received
by Auction Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount
to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest
discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being
referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an aggregate principal
amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Term Lender
that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable
Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required
proration pursuant to the following subsection (3)) at the Applicable Discount (each such Term Lender, a “Participating
Lender”).
(3) If
there is at least one Participating Lender, the relevant Company Party will prepay the respective outstanding Term Loans of each Participating
Lender in the aggregate principal amount and of the tranches specified in such Lender’s Discount Range Prepayment Offer at the Applicable
Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than or equal
to the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Term Loans
for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified
Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount
of each such Identified Participating Lender and the Auction Agent (in consultation with such Company Party and subject to rounding requirements
of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”).
The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response
Date, notify (I) the relevant Company Party of the respective Term Lenders’ responses to such solicitation, the Discounted
Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Term Loan Prepayment and the
tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate
principal amount and tranches of Term Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender
of the aggregate principal amount and tranches of such Term Lender to be prepaid at the Applicable Discount on such date, and (IV) if
applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts
stated in the foregoing notices to the relevant Company Party and Term Lenders shall be conclusive and binding for all purposes absent
manifest error. The payment amount specified in such notice to the Company Party shall be due and payable by such Company Party on the
Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).
(D) (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time solicit Solicited Discounted Prepayment
Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Solicited Discounted Prepayment
Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Company Party, to (x) each
Term Lender and/or (y) each Lender with respect to any Class of Term Loans on an individual tranche basis, (II) any such
notice shall specify the maximum aggregate principal
amount of the Term Loans (the “Solicited Discounted Prepayment Amount”) and the tranche or tranches of Term
Loans the Borrower is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may
be offered with respect to different tranches of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant
to the terms of this Section 2.05(a)(v)(D)), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate
principal amount not less than $10,000,000
and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by a Company Party shall remain outstanding
through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy
of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding
Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m. (New York City time), on the third Business Day after the
date of delivery of such notice to such Term Lenders (the “Solicited Discounted Prepayment Response Date”). Each Term
Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date,
and (z) specify both a discount to par (the “Offered Discount”) at which such Term Lender is willing to allow
prepayment of its then outstanding Term Loan and the maximum aggregate principal amount and tranches of such Term Loans (the “Offered
Amount”) such Term Lender is willing to have prepaid at the Offered Discount. Any Term Lender whose Solicited Discounted Prepayment
Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment
of any of its Term Loans at any discount.
(2) The
Auction Agent shall promptly provide the relevant Company Party with a copy of all Solicited Discounted Prepayment Offers received on
or before the Solicited Discounted Prepayment Response Date. Such Company Party shall review all such Solicited Discounted Prepayment
Offers and select the largest of the Offered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment
Offers that is acceptable to the Company Party (the “Acceptable Discount”), if any. If the Company Party elects to
accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount,
but in no event later than by the third Business Day after the date of receipt by such Company Party from the Auction Agent of a copy
of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance
Date”), the Company Party shall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable
Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Company Party by the Acceptance Date,
such Company Party shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(3) Based
upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment
Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination
Date”), the Auction Agent will determine (in consultation with such Company Party and subject to rounding requirements of the
Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the tranches of Term Loans (the “Acceptable
Prepayment Amount”) to be prepaid by the relevant Company Party at the Acceptable Discount in accordance with this Section 2.05(a)(v)(D).
If the Company Party elects to accept any Acceptable Discount, then the Company Party agrees to accept all Solicited Discounted Prepayment
Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest
Offered Discount, up to and including the Acceptable Discount. Each Term Lender that has submitted a Solicited Discounted Prepayment Offer
with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment
of Term Loans equal to its Offered Amount (subject to any required pro rata reduction pursuant to the following sentence) at the Acceptable
Discount (each such Lender, a “Qualifying Lender”). The Company Party will prepay outstanding Term Loans pursuant to
this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the tranches specified in such Lender’s
Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying
Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount,
prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the
Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders
in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with such Company
Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration
(the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent
shall promptly notify (I) the relevant Company Party of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount
comprising the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment
Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Term Loans and the tranches to be prepaid to be prepaid
at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of such
Term Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the
Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to such Company Party
and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to
such Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below
(subject to subsection (J) below).
(E) In
connection with any Discounted Term Loan Prepayment, the Company Parties and the Term Lenders acknowledge and agree that the Auction Agent
may require as a condition to any Discounted Term Loan Prepayment, the payment of customary fees and expenses from a Company Party in
connection therewith.
(F) If
any Term Loan is prepaid in accordance with paragraphs (B) through (D) above, a Company Party shall prepay such Term Loans on
the Discounted Prepayment Effective Date. The relevant Company Party shall make such prepayment to the Administrative Agent, for the account
of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s
Office in immediately available funds not later than 11:00 a.m. (New York City time) on the Discounted Prepayment Effective Date
and all such prepayments shall be applied to the remaining principal installments of the relevant tranche of Loans on a pro rata basis
across such installments. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount
so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant
to this Section 2.05(a)(v) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying
Lenders, as applicable, and shall be applied to the relevant Loans of such Lenders in accordance with their respective Pro Rata Share.
The aggregate principal amount of the tranches and installments of the relevant Term Loans outstanding shall be deemed reduced by the
full par value of the aggregate principal amount of the tranches of Term Loans prepaid on the Discounted Prepayment Effective Date in
any Discounted Term Loan Prepayment. In connection with each prepayment pursuant to this Section 2.05(a)(v), the relevant
Company Party shall waive any right to bring any action against the Administrative Agent, in its capacity as such, in connection with
any such Discounted Term Loan Prepayment.
(G) To
the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent
with the provisions in this Section 2.05(a)(v), established by the Auction Agent acting in its reasonable discretion and as
reasonably agreed by the Borrower.
(H) Notwithstanding
anything in any Loan Document to the contrary, for purposes of this Section 2.05(a)(v), 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 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.
(I) Each
of the Company Parties and the Term Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this
Section 2.05(a)(v) by itself or through any Affiliate of the Auction Agent and expressly consents 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 Discounted
Term Loan Prepayment provided for in this Section 2.05(a)(v) as well as activities of the Auction Agent.
(J) Each
Company Party shall have the right, by written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted
Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted
Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and
if such offer is revoked pursuant to the preceding clauses, any failure by such Company Party to make any prepayment to a Lender, as applicable,
pursuant to this Section 2.05(a)(v) shall not constitute a Default or Event of Default under Section 8.01 or otherwise).
(b) Mandatory.
(i) Within
five (5) Business Days after financial statements have been delivered pursuant to
Section 6.01(a) (commencing with the fiscal year ending December 31, 2015) and the related Compliance Certificate
has been delivered pursuant to Section 6.02(a), the BorrowerHoldings
shall cause to be offered to be prepaid in accordance with clauses
(b))(vi) and
(ix) below, an aggregate principal amount of Term Loans in an amount equal to (the
“ECF Payment Amount”) (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year
covered by such financial statements, minus
(B) the sum of (1) at the Borrower’s
option, all voluntary prepayments, repurchases
or redemptions of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment
is due (including, in the amount
of cashe
actually paid in respect of Term Loans prepaid pursuant to (x) Section 2.05(a)(v) during
such time) and (2), an amount
equal to the principal (or face) amount of indebtedness so prepaid, repaid, retired or repurchased, (y) Section 3.07, an amount
equal to the principal (or face) amount of indebtedness so prepaid, repaid, retired or repurchased and (z) open-market or other privately
negotiated purchases (including an exchange) pursuant to Section 10.07(l), an amount equal to the principal (or face) amount of indebtedness
so prepaid, repaid, retired or repurchased), (2) at the Borrower’s option, all voluntary prepayments,
repurchases or redemptions of Revolving Credit Loans during such fiscal year or after year-end and prior to when such Excess Cash
Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, (3) at
the Borrower’s option, all voluntary prepayments, repurchases or redemptions of any Incremental Equivalent Debt, Credit Agreement
Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g), Senior Notes and any other Indebtedness
(in the case of any revolving credit facilities, to the extent accompanied by a permanent reduction of the corresponding commitment),
in each case secured by Liens on the Collateral and repurchased or redeemed on a pro rata basis or less than pro rata basis with the Initial
Term Loans (except to the extent financed with proceeds of long-term funded Indebtedness (other than revolving loans)), during such fiscal
year or after year-end and prior to when such Excess Cash Flow prepayment is due, (4) the
amount of Capital Expenditures or acquisitions of IP
Rights to the extent not expensed and Capitalized Software Expenditures
accrued or made (or committed to be made)
in cash during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment
is due (it being understood that to the extent such Capital Expenditures
or acquisitions are not actually made as
committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) to the extent
financed with internally generated cash or Borrowings
under the Revolving Credit Facility or
any other revolving credit facilities, (5) the aggregate amount
of all principal payments of Indebtedness of Holdings
or the Restricted Subsidiaries made (or committed to be made) during such period or, at the option of the Borrower, made after such period
and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent such payments are not actually made
as committed in a subsequent period, such amount shall be added back in calculating Excess Cash Flow for such subsequent period) (including
(A) the principal component of payments in respect of Financing
Leases, (B) the amount of any scheduled repayment of Term Loans
pursuant to Section 2.07, and (C) any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) to
the extent required due to a Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such
increase but excluding (X) all other voluntary and mandatory prepayments of Term Loans and all prepayments and repayments of Revolving
Credit Loans and (Y) all prepayments in respect of any other revolving credit facility, except in the case of clause (Y) to
the extent there is an equivalent permanent reduction in commitments thereunder to the extent financed with internally generated cash
or Borrowings under the Revolving Credit
Facility or borrowings under revolving credit facilities), (6) cash payments by Holdings and the Restricted Subsidiaries made (or
committed to be made) during such period or, at the option of the Borrower, made after such period and prior to the date the Excess Cash
Flow prepayment is due (it being understood that to the extent such payments are not actually made as committed in a subsequent period,
such amount shall be added back in calculating Excess Cash Flow for such subsequent period) in
respect of long-term liabilities of Holdings
and the Restricted Subsidiaries other than Indebtedness, to
the extent financed with internally generated cash or borrowings under the Revolving Credit Facility or any other revolving credit facilities,
(7) the amount of Investments and acquisitions made (or
committed to be made) by Holdings and the Restricted Subsidiaries
during such period or, at the option of
the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent
such Investments and acquisitions are not actually made as committed in a subsequent period, such amount shall be added back in calculating
Excess Cash Flow for such subsequent period) and paid (or committed to be paid) in
cash pursuant to Section 7.02 (other than Section 7.02(a), (c) or (x)),
to the extent financed with internally generated cash or Borrowings
under the Revolving Credit Facility or borrowings under revolving credit facilities, (8) the
amount of Restricted Payments paid in cash
(or committed to be paid) during such period or, at the option of the Borrower, paid after such period and prior to the date the Excess
Cash Flow prepayment is due (it being understood that to the extent such payments are not actually paid as committed in a subsequent period,
such amount shall be added back in calculating Excess Cash Flow for such subsequent period), to the extent financed
with internally generated cash or Borrowings
under the Revolving Credit Facility or borrowings under revolving credit facilities, (9) the
aggregate amount of expenditures made (or
committed to be made) by Holdings and its Restricted Subsidiaries
in cash during such period or, at the option
of the Borrower, made after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the
extent such expenditures are not actually made as committed in a subsequent period, such amount shall be added back in calculating Excess
Cash Flow for such subsequent period) (including expenditures for
the payment of financing fees) to the extent that such expenditures are not expensed during such period,
to the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility or borrowings under revolving
credit facilities, (10) the aggregate amount of any premium,
make-whole or penalty payments paid (or
committed to be paid) in cash by Holdings and its Restricted Subsidiaries
during such period or, at the option of
the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment is due (it being understood that to the extent
such premium, make-whole or penalty payments are not actually paid as committed in a subsequent period, such amount shall be added back
in calculating Excess Cash Flow for such subsequent period) that
are required to be made in connection with any prepayment of Indebtedness, to
the extent financed with internally generated cash or Borrowings under the Revolving Credit Facility or borrowings under revolving credit
facilities, (11) the amount of cash Taxes (including Tax distributions paid pursuant to Section 7.06(i)(iii)) paid (or committed
to be paid) in such period or, at the option of the Borrower, paid after such period and prior to the date the Excess Cash Flow prepayment
is due (it being understood that to the extent such taxes are not actually paid as committed in a subsequent period, such amount shall
be added back in calculating Excess Cash Flow for such subsequent period) to
the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period and
(12) (x) the aggregate consideration required to be paid in
cash by Holdings and
its Restricted Subsidiaries pursuant to binding contracts,
commitments, letters of intent or purchase orders (the “Contract
Consideration”) entered into prior to or during such period and
(y) the aggregate amount of cash that is reasonably expected to be expended in respect of any planned cash expenditures by Holdings
or any of the Restricted Subsidiaries in the case of each of clauses (x) and (y), relating to acquisitions or other Investments or
Capital Expenditures or acquisitions of IP
Rights to the extent expected to be consummated or made, in each
case during the period of six consecutive
fiscal quarters of Holdings following the end of such period (or
if committed to be made during such six consecutive fiscal quarter period (including pursuant to any letter of intent), during the period
of two consecutive fiscal quarters of Holdings following the end of such six fiscal-quarter period);
provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such acquisition
or other Investment, Capital Expenditures or acquisitions of IP
Rights during such period of six consecutive fiscal quarters is less
than the Contract Consideration (or if
committed to during such six consecutive fiscal quarter period (including pursuant to any letter of intent), two consecutive fiscal quarters
of Holdings following the end of such six fiscal-quarter period), the
amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of six
consecutive fiscal quarters (or if committed to be made during such six consecutive fiscal quarter period, during the period of two consecutive
fiscal quarters of Holdings following the end of such six fiscal-quarter period), in the case of each of the immediately preceding
clauses (1) andthrough
(212),
to the extent such prepayments are funded with the internally generated cash and, without duplication of any deduction
from Excess Cash Flow in any prior period.;
provided that any such amounts set forth in clauses (1) through (12) that have not been applied to reduce the prepayments
which may be due from time to time pursuant to this Section 2.05(b)(i) shall be carried over to the immediately succeeding fiscal
year and may reduce the prepayments due from time to time pursuant to this Section 2.05(b)(i) during such fiscal year, until
such time as such amounts have been used to reduce such prepayments which may be due from time to time, minus (C) an amount
equal to the greater of (x) $115,000,000 and (y) an amount equal to 15% of LTM Consolidated EBITDA at the time of such prepayment;
provided, further, that, for the avoidance of doubt, only amounts in excess of the greater of (x) $115,000,000 and
(y) an amount equal to 15% of LTM Consolidated EBITDA at the time of such prepayment shall be prepaid pursuant to this Section 2.05(b)(i) (at
the election of the Borrower, with unused amounts described in this clause (C) carried forward to the next succeeding fiscal year
and; provided that in the event that a prepayment is due in respect of a fiscal year pursuant to this Section 2.05(b)(i),
the Borrower may elect, in its sole discretion, to use amounts pursuant to this clause (C) that would otherwise be available for
the next succeeding fiscal year, which usage shall reduce such amounts available to the Borrower in such next succeeding fiscal year);
provided, further, that if at the time that any such prepayment would be required, Holdings is required to offer to repurchase
Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Permitted Ratio Debt, incurred Indebtedness under Section 7.03(g),
in each case, that is secured by a Lien on the Collateral on an equal priority basis (without giving effect to the control of remedies)
with or junior to the Lien securing the Term Loans or any other Indebtedness outstanding at such time that is secured by a Lien on the
Collateral on an equal priority basis (without giving effect to the control of remedies) with or junior to the Lien securing the Term
Loans pursuant to the terms of the documentation governing such Indebtedness
with Excess Cash Flow (such Indebtedness required to be offered to
be so repurchased, “Other Applicable
Indebtedness”), then Holdings may apply the Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding
principal amount of the Term Loans and Other Applicable Indebtedness at such time) and the remaining Excess Cash Flow to the prepayment
of such Other Applicable Indebtedness; provided, further, that (A) the portion of Excess Cash Flow allocated to the
Other Applicable Indebtedness shall not exceed the amount of Excess Cash Flow required to be allocated to the Other Applicable Indebtedness
pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance
with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the
amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall
be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased
or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection)
be applied to prepay the Term Loans in accordance with the terms hereof.
(ii) If
(x) the BorrowerHoldings
or any Restricted Subsidiary of the Borrower Disposes of any property or assets (other
than any Disposition of any property or assets permitted bypursuant
to Sections 7.05(a), (b), (c), (d), (e), (g), (h), (i), (l), (m) (except to the extent
such property is subject to a Mortgage), (o), (p), (q) or (s)),j)
or (y) any Casualty Event occurs, which results in the realization or receipt by the BorrowerHoldings
or Restricted Subsidiary of Net Proceeds, the BorrowerHoldings
shall cause to be offered to be prepaid in accordance with clause (b))(vi) and
(ix) below, on or prior to the date which is tentwenty
(1020)
Business Days after the date of the realization or receipt by the BorrowerHoldings
or any Restricted Subsidiary of such Net Proceeds, subject to clause (b))(xix) below,
an aggregate principal amount of Term Loans in an amount equal to 100%the
Applicable Asset Sale Percentage of all Net Proceeds received (such
amount, the “Applicable Proceeds”); provided that if at the time that any such prepayment would be required,
(I) to the extent such Net Proceeds are from the Disposition of ABL Priority Collateral or Non-U.S.
ABL Facility Collateral or Casualty Event with respect to ABL Priority Collateral or Non-U.S. ABL Facility Collateral, the Borrower elects
to offer to permanently reduce ABL Debt, pursuant to the terms of the documentation
governing such ABL Debt, or any other Indebtedness of the Borrower or a Guarantor that is secured by a
Lien on such ABL Priority Collateral that is prior to the Lien on the ABL Priority Collateral securing the Obligations or secured by a
Lien on such Non-U.S. ABL Facility Collateral (and, in the case of revolving obligations, to correspondingly reduce commitments with respect
thereto), then the Borrower may apply such Net Proceeds to such ABL Debt and (II) the BorrowerHoldings
is required to offer to repurchase any Permitted First Priority Refinancing Debt (or any Permitted
Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing
suchOther Applicable Indebtedness
with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered
to be so repurchased, “,
then Holdings may apply the Applicable Proceeds to such Other Applicable Indebtedness”),
then the Borrower may apply such Net Proceeds on
a proat the election of Holdings,
on a pro rata or less than pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans
and Other Applicable Indebtedness at such time) and
the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that
(A) the portion of suchthe
Applicable Proceeds (but not the other Net Proceeds received)
allocated to the Other Applicable Indebtedness shall not exceed the amount of such NetApplicable
Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any,
of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and
to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise
been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders
of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in
any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with
the terms hereof. If any such Disposition provided for in the preceding sentence involves any Term Priority
Collateral, then, prior to the Discharge of Senior Secured Debt Obligations of the ABL Secured Parties (each such term as defined in the
ABL Intercreditor Agreement), the Net Proceeds therefrom shall be deposited by the applicable Loan Party into the Term Priority Collateral
Account pending application thereof as provided in this clause (ii).
(iii) [Reserved].
(iviii) If
the BorrowerHoldings
or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03
(excluding Section 7.03(t)), the Borrower),
Holdings shall cause to be offered to be prepaid in accordance with clause (b))(vi) below
an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date
which is five (5) Business Days after the receipt by the
BorrowerHoldings or such
Restricted Subsidiary of such Net Proceeds.;
provided that if at the time that any such prepayment would be required, Holdings is required to offer to repurchase any Other Applicable
Indebtedness with the Net Proceeds of such Indebtedness, then Holdings may
apply such Net Proceeds to such Other Applicable
Indebtedness, at the election of Holdings, on a pro rata or less than pro rata basis (determined on the basis of the aggregate outstanding
principal amount of the Term Loans and Other Applicable Indebtedness at such time) to the prepayment of Other Applicable Indebtedness;
provided, further, that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the
amount of such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining
amount, if any, of such Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof to the prepayment of the
Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would
have otherwise been required pursuant to this Section 2.05(b)(iii) shall be reduced accordingly and (B) to the extent
the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly
(and in any event within ten (10) Business Days after the date
of such rejection) be applied to prepay
the Term Loans in accordance with the terms hereof. If
the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing
Indebtedness shall be used pursuant to clause (iv) of the definition thereof.
(viv) If
for any reason the aggregate Revolving Credit Exposures at any time exceeds the aggregate Revolving Credit Commitments then in effect
(including, for the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity
Date with respect thereto), the Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing
Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the
Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(viv)
unless after the prepayment in full of the Revolving Credit Loans and Swing Line Loans such
aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(viv) Except
with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request
or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment
of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to eachas
between series, Classes or tranches of Term Loans as
directed by then outstandingBorrower
(provided that (i) any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness
shall be applied solely to each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may
specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental
Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (i) through (iv) of
this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment
pursuant to Section 2.07(a) asin
direct order of maturity (without premium or penalty), unless otherwise directed by the Borrower; and (C) each such prepayment
shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vii) The
Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses
(i) through (iv) of this Section 2.05(b) at least four (4) Business Days prior to the date of such prepayment.
Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment.
The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of
such Appropriate Lender’s Pro Rata Share of the prepayment.
(viii) Funding
Losses, Etc. All prepayments under this Section 2.05 shall be made together with,
in the case of any such prepayment of a RFR Loan or Term SOFR Loan (solely limited to the Initial B-3
Dollar Term Loans) on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such RFR Loan or
Term SOFR Loan (solely limited to the Initial B-3 Dollar Term Loans) pursuant to Section 3.05. Notwithstanding any of the other
provisions of Section 2.05(b), so long as no Event of Default shall have occurred and be continuing,
if any prepayment of RFR Loans or Term SOFR Loans (solely limited to the Initial B-3 Dollar Term Loans) is required to be made under
this Section 2.05(b), prior to the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the
amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest
Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from
the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance
with this Section 2.05(b). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall
also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to
the prepayment of the outstanding Loans in accordance with this Section 2.05(b).
(vii) [Reserved].
(ixviii) Term
Opt-out of Prepayment. With respect to each prepayment of Term Loans required pursuant to Section 2.05(b)(i) or
(ii), (A) each Lender of Term Loans will have the right to refuse such offer of prepayment by giving written notice of such
refusal to the Administrative Agent within one (1) Business Day after such Lender’s receipt of notice from the Administrative
Agent of such offer of prepayment (“Declined Proceeds”) (in which case the Borrower shall not prepay any Term Loans
of such Lender on the date that is specified in clause (B) below) , (B) the Borrower will make all such prepayments not so
refused upon the fourth Business Day after delivery of notice by the Borrower pursuant to Section 2.05(b)(vii) and (C) any
Declined Proceeds may be retained by the Borrower.
(xix) In
connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to this Section 2.05(b), such prepayments
shall be applied on a pro rata basis to the then outstanding Term Loans of the applicable Class or Classes being prepaid irrespective
of whether such outstanding Term Loans are Base Rate Loans, Term SOFR Loans or RFR Loans; provided that if
no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans
pursuant to Section 2.05(b)(ix), then, with respect to such mandatory prepayment, the
amount of such mandatory prepayment within any tranche of Term Loans shall be applied first to Term Loans of such tranche that are Base
Rate Loans to the full extent thereof before application to Term Loans of such tranche that are RFR Loans or Term SOFR Loans in
a manner that minimizes the amount of any payments required to be made by the Borrower (giving
effect to the exercise by any Lender of such Lender’s right
to waive a given mandatory prepayment of the Term Loans pursuant to Section 3.052.05(b)(viii)).
(xix) Foreign
DispositionsNon-Guarantors and Excess Cash
Flow. Notwithstanding any other provisions of this Section 2.05, (i) to the extent that any or all of the Net
Proceeds of any Disposition by a ForeignRestricted
Subsidiary (“Foreign Disposition”) that
is not a Loan Party or Excess Cash Flow attributable to Foreigna
Restricted Subsidiariesy
that is not a Loan Party are prohibited or delayed by applicable local law from being repatriated to the United States, the portion
of such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in
this Section 2.05 but may be retained by the applicable ForeignRestricted
Subsidiary that is not a Loan Party so long, but only so long,
as the applicable local law will not permit repatriation to the United States (the Borrower hereby agreeing to cause the applicable ForeignRestricted
Subsidiary that is not a Loan Party to promptly take all actions
reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net
Proceeds or Excess Cash Flow that, in each case, would otherwise be required to be used to make an offer of prepayment pursuant to Sections
2.05(b)(i) or 2.05(b)(ii), is permitted under the applicable local law, such repatriation will be immediately
effected and such repatriated Net Proceeds or Excess Cash Flow 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 as a result thereof) to the repayment of the Term Loans
pursuant to this Section 2.05 and (ii) to the extent that the Borrower has reasonably
determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Disposition
orby a Foreign Subsidiary’s
or a
Restricted Subsidiary that is not a Loan Party’s Excess
Cash Flow would have material adverse tax cost consequences to
Holdings, the Borrower, any direct or indirect owner of the Borrower or any of the Borrower’s direct or indirect Subsidiaries with
respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow so affected may be retained by the applicable
ForeignRestricted
Subsidiary that is not a Loan Party; provided that in the
case of this clause (ii), on or before the date on which any such Net Proceeds so retained would otherwise have been required to be applied
to reinvestments or prepayments pursuant to this Section 2.05(b) or
any such Excess Cash Flow would have been required to be applied to prepayments pursuant to this
Section 2.05(b), the Borrower applies an amount equal to such Net Proceeds or Excess Cash Flow to such reinvestments
or prepayments, as applicable, as if such Net Proceeds or Excess Cash Flow had been received by the Borrower rather than such ForeignRestricted
Subsidiary that is not a Loan Party, less the amount of additional
taxes that would have been payable or reserved against if such Net Proceeds or Excess Cash Flow had been repatriated (or, if less, the
Net Proceeds or Excess Cash Flow that would be calculated if received by such ForeignRestricted
Subsidiary that is not a Loan Party).
(c) Notwithstanding
anything to the contrary contained in this Section 2.05, (i) the proceeds of the
Initial B-2 Euro Term Loans made on the Amendment
No. 2 Effective Date shall be used to prepay the entire amount
of the Initial B-1 Euro Term Loans, (ii) the proceeds of the Initial B-3 Dollar Term Loans made
on the Amendment No. 4 Effective Date shall be used to prepay the entire amount of the Initial B-2 Dollar Term Loans and (iii) the
proceeds of the Initial B-4 Dollar Term Loans made on the Amendment No. 6 Effective Date shall be used to prepay the entire amount
of the Initial B-2 Euro Term Loans. (as
defined in this Agreement as of the Amendment No. 6 Effective Date) and (ii) the
proceeds of the Initial B-5 Dollar Term
Loans made on the Amendment No. 9 Effective Date
shall be used to prepay the entire amount of the Initial B-3 Dollar
Term Loans.
SECTION 2.06 Termination
or Reduction of Commitments.
(a) Optional.
The Borrower may, upon written notice to the Administrative Agent, terminate the unused Commitments of any Class, or from time to
time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that (i) any such
notice shall be received by the Administrative Agent three Business Days prior to the date of termination or reduction (unless
the Administrative Agent agrees to a shorter period in its discretion), (ii) any such partial reduction shall be in a minimum
aggregate principal amount of $5,000,0001,000,000,
or any whole multiple of $1,000,000250,000,
in excess thereof or, if less, the entire amount thereof and (iii) if, after giving effect to any reduction of the Commitments,
the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving
Credit Facility, such sublimit shall be automatically reduced by the amount of such excess. The amount of any such Commitment reduction
shall not otherwise be applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless
otherwise specified by the Borrower. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of
the Commitments if such termination would have resulted from a refinancing of all of the applicable Facility, which refinancing shall
not be consummated or otherwise shall be delayed.
(b) Mandatory.
The Initial Term Commitment of each Term Lender of each Class shall be automatically
and permanently reduced to $0 upon the funding of the Initial Term
Loans of such Class to be made by it on the Closing Date. The Revolving Credit
Commitment of each Class shall automatically and permanently terminate on the Maturity Date with respect to such Class of Revolving
Credit Commitments. The Additional B-3 Dollar Term
Commitment of the Additional B-3 Dollar Term Lender shall be automatically
and permanently reduced to $0 upon the funding of the Initial B-3 Dollar
Term Loans to be made by such Additional B-3 Dollar Term Lenders on
the Amendment No. 4 Effective Date. The Additional B-4 Dollar Term Commitment of
the Additional B-4 Dollar Term Lender shall be automatically and permanently reduced to $0 upon the funding of the Initial B-4 Dollar
Term Loans to be made by such Additional B-4 Dollar Term Lenders on the Amendment No. 6 Effective Date. The
Additional B-5 Dollar Term Commitment of the Additional B-5
Dollar Term Lender shall be automatically and permanently reduced
to $0 upon the funding of the Initial B-5 Dollar
Term Loans to be made by such Additional B-5 Dollar
Term Lenders on the Amendment No. 9 Effective Date.
(c) Application
of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Appropriate Lenders of any termination
or reduction of unused portions of the Letter of Credit Sublimit or the Swing Line Sublimit
or the unused Commitments of any Class under this Section 2.06. Upon any reduction of unused Commitments of any Class,
the Commitment of each Lender of such Class shall be reduced by such Lender’s Pro Rata Share of the amount by which such Commitments
are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.07). All facilitycommitment
fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such
termination.
SECTION 2.07 Repayment
of Loans.
(a) Term
Loans.
(i) The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term Lenders (i) on the last Business Day of each March, June, September and December, an aggregate principal amount equal
to 0.25% of the aggregate principal amount of all Initial Term Loans
of each Class outstanding on the Amendment No. 2 Effective Date (which payments shall be reduced as a result of the application
of prepayments in accordance with the order of priority set forth in Section 2.05) and (ii) on the Maturity Date for the Initial
Term Loans of each Class, the aggregate principal amount of all Initial B-2 Dollar Term Loans or Initial B-2 Euro Term Loans of such
Class outstanding on such date. In the event that, prior to the incurrence of any Incremental
Term Loans in respect of the Initial B-2 Euro Term Loans, the Initial B-2 Euro Term Loans or any existing
Incremental Term Loans have scheduled amortization payments under Section 2.07(a)(i) (or
other equivalent section) that are less than 0.25% of the aggregate principal amount
of such existing Initial B-2 Euro Term Loans when initially incurred, then at the Borrower’s option,
(x) the scheduled amortization payments of such existing Initial B-2 Euro Term Loans on the effective date of such Incremental Term
Loans shall be increased to be equal quarterly installments of principal equal to 0.25% of the aggregate principal amount of such existing
Initial B-2 Euro Term Loans originally incurred or (y) the scheduled amortization payment of such Incremental Term Loans shall equal
such smaller percentage applicable to the existing Initial B-2 Euro Term Loans on such scheduled amortization payment date(s) (reflected
as a percentage of the aggregate principal amount of such Incremental Term Loans), so long as, in the event this clause (y) is applicable,
and for the avoidance of doubt, such percentage is expressly set forth in the Incremental Amendment with respect to such Incremental
Term Loans. In the event any other Incremental Term Loans, Refinancing Term Loans or Extended Term Loans are made, such other Incremental
Term Loans, Refinancing Term Loans or Extended Term Loans, as applicable, shall be repaid by the Borrower in the amounts and on the dates
set forth in the Incremental Amendment, Refinancing Amendment or Extension Amendment with
respect thereto and on the applicable Maturity Date thereof.
(i) [Reserved].
(ii) The
Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders (i) on the last Business Day of each
March, June, September and December, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Initial
B-3-4 Dollar Term
Loans of each Class outstanding on the Amendment No. 46
Effective Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05) and (ii) on the Maturity Date for the Initial B-3-4
Dollar Term Loans of each Class, the aggregate principal amount of all Initial B-3-4
Dollar Term Loans of such Class outstanding on such date. In the event that, prior to the incurrence of any Incremental Term
Loans in respect of the Initial B-3-4
Dollar Term Loans, the Initial B-3-4
Dollar Term Loans or any existing Incremental Term Loans have scheduled amortization payments under Section 2.07(a)(i) (or
other equivalent section) that are less than 0.25% of the aggregate principal amount of such existing Initial B-3-4
Dollar Term Loans when initially incurred, then at the Borrower’s option, (x) the scheduled amortization payments of
such existing Initial B-3-4
Dollar Term Loans on the effective date of such Incremental Term Loans shall be increased to be equal quarterly installments of
principal equal to 0.25% of the aggregate principal amount of such existing Initial B-3-4
Dollar Term Loans originally incurred or (y) the scheduled amortization payment of such Incremental Term Loans shall equal
such smaller percentage applicable to the existing Initial B-3-4
Dollar Term Loans on such scheduled amortization payment date(s) (reflected as a percentage of the aggregate principal amount
of such Incremental Term Loans), so long as, in the event this clause (y) is applicable, and for the avoidance of doubt, such percentage
is expressly set forth in the Incremental Amendment with respect to such Incremental Term Loans. In the event any other Incremental Term
Loans, Refinancing Term Loans or Extended Term Loans are made, such other Incremental Term Loans, Refinancing Term Loans or Extended
Term Loans, as applicable, shall be repaid by the Borrower in the amounts and on the dates set forth in the Incremental Amendment, Refinancing
Amendment or Extension Amendment with respect thereto and on the applicable Maturity Date thereof.
(iii) The
Borrower shall repay to the Administrative Agent for the ratable account of the Term Lenders (i) on the last Business Day of each
March, June, September and December, commencing with the fiscal quarter
ending December 31, 2024, an aggregate principal amount equal to 0.25% of the aggregate principal amount of all Initial B-4-5
Dollar Term Loans of each Class outstanding on the Amendment No. 69
Effective Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05) and (ii) on the Maturity Date for the Initial B-4-5
Dollar Term Loans of each Class, the aggregate principal amount of all Initial B-4-5
Dollar Term Loans of such Class outstanding on such date. In the event that, prior to the incurrence of any Incremental Term
Loans in respect of the Initial B-4-5
Dollar Term Loans, the Initial B-4-5
Dollar Term Loans or any existing Incremental Term Loans have scheduled amortization payments under Section 2.07(a)(i) (or
other equivalent section) that are less than 0.25% of the aggregate principal amount of such existing Initial B-4-5
Dollar Term Loans when initially incurred, then at the Borrower’s option, (x) the scheduled amortization payments of
such existing Initial B-4-5
Dollar Term Loans on the effective date of such Incremental Term Loans shall be increased to be equal quarterly installments of
principal equal to 0.25% of the aggregate principal amount of such existing Initial B-4-5
Dollar Term Loans originally incurred or (y) the scheduled amortization payment of such Incremental Term Loans shall equal
such smaller percentage applicable to the existing Initial B-4-5
Dollar Term Loans on such scheduled amortization payment date(s) (reflected as a percentage of the aggregate principal amount
of such Incremental Term Loans), so long as, in the event this clause (y) is applicable, and for the avoidance of doubt, such percentage
is expressly set forth in the Incremental Amendment with respect to such Incremental Term Loans. In the event any other Incremental Term
Loans, Refinancing Term Loans or Extended Term Loans are made, such other Incremental Term Loans, Refinancing Term Loans or Extended
Term Loans, as applicable, shall be repaid by the Borrower in the amounts and on the dates set forth in the Incremental Amendment, Refinancing
Amendment or Extension Amendment with respect thereto and on the applicable Maturity Date thereof.
(b) Revolving
Credit Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders on the applicable
Maturity Date for the Revolving Credit Facilities of a given Class the aggregate principal amount of all of its Revolving Credit
Loans of such Class outstanding on such date.
(c) Swing
Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date five (5) Business
Days after such Loan is made and (ii) the Maturity Date for the Revolving Credit Facility (although Swing Line Loans may thereafter
be reborrowed, in accordance with the terms and conditions hereof, if there are one or more Classes of Revolving Credit Commitments which
remain in effect).
SECTION 2.08 Interest.
(a) Subject
to the provisions of Section 2.08(b), (i) each RFR Loan (other than SONIA Rate Loans) shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to the EURIBO Rate or the TIBOR Rate, as applicable, for
such Interest Period plus the Applicable Rate; (ii) each SONIA Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the SONIA Rate for such period plus the Applicable Rate; (iii) each
Base Rate Loan (other than a Swing Line Loan) shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate;
and (iv) each Term SOFR Loan shall bear interest
on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to (a) for
Initial B-3 Dollar Term Loans, Adjusted Term SOFR[reserved]
and (b) for Revolving Credit Loans and, Initial
B-4 Dollar Term Loans and Initial B-5 Dollar Term Loans, Term SOFR,
in each case for such Interest Period plus the Applicable Rate; provided that, if Term SOFR shall be determined pursuant to clause
(a)(ii) of the definition thereof, each such Loan shall be deemed to bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to (x) for Initial B-3 Dollar Term Loans,
Adjusted Daily Simple SOFR for each day such Loan remains outstanding plus the Applicable Rate[reserved]
and (y) for Revolving Credit Loans and, Initial
B-4 Dollar Term Loans and Initial B-5 Dollar Term Loans, Daily Simple
SOFR for each day such Loan remains outstanding plus the Applicable Rate and (v) each Swing Line
Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate for Revolving Credit Loans.
(b) During
the continuance of a Default under Section 8.01(a), the Borrower shall pay interest on past due amounts owing by it hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws; provided
that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting
Lender. Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified
herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.
SECTION 2.09 Fees.
In addition to certain fees described in Sections
2.03(h) and (i):
(a) FacilityCommitment
Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender under the applicable
Revolving Credit Facility in accordance with its Pro Rata Share or other applicable share provided for under this Agreement, a facilitycommitment
fee in Dollars equal to the Applicable Rate with respect to Revolving Credit Loan facility
feesCommitment Fee Rate, times the actual daily
amount ofby
which the aggregate Revolving Credit Commitments for the applicable Revolving Credit Facility whether
drawn or undrawn (or, if the Revolving Credit Commitments shall have expired or been terminated and there is any Outstanding Amount
of Revolving Credit Loans or L/C Obligations for such Facility, times the daily amount ofexceeds
the sum of (A) the Outstanding Amount of Revolving Credit Loans for such Facility, and
(B) the Outstanding Amount of L/C Obligations for such Facility and (C) the Outstanding
Amount of Swing Line Loans for such Facility); provided that any facilitycommitment fee
accrued with respect to any of the Commitments of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender,
except to the extent that such facilitycommitment fee
shall otherwise have been due and payable by the Borrower prior to such time; and provided, further, that no facilitycommitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The facilitycommitment fee
on each Revolving Credit Facility shall accrue at all times from the Closing Date until the applicable Maturity
Date for the New Revolving Credit Commitments, as
the case may be, including at any time during which one or more of the conditions in Article IV is not
met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date during the first full fiscal quarter to occur after the Closing Date and on the Maturity Date
for the New Revolving Credit Commitments. The facilitycommitment fee
shall be calculated quarterly in arrears, and if there is any change in the ApplicableCommitment
Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the ApplicableCommitment
Fee Rate separately for each period during such quarter that such ApplicableCommitment
Fee Rate was in effect.
(b) Closing
Fees. (i) The Borrower agrees to pay to the Administrative Agent for the account of each Term Lender on the
Closing Date in accordance with its Pro Rata Share or other applicable share provided for under this Agreement, an upfront fee (which
may take the form of original issue discount) in an amount equal to 1.00% of the stated principal amount of such Term Lender’s
Initial Dollar Term Loans and Initial Euro Term Loans, payable to such Term Lender from the proceeds of its Initial Dollar Term Loans
and Initial Euro Term Loans as and when funded on the Closing Date. Such fee will be in all respects fully earned, due and payable on
the Closing Date and non-refundable and non-creditable thereafter.
(ii) The
Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Pro Rata Share or other applicable share provided for under this Agreement,
an upfront fee in an amount equal to 0.50% of the stated principal amount of such Revolving Credit Lender’s Revolving Credit Commitments,
payable to such Revolving Credit Lender from the proceeds of the Borrowings to occur on the Closing Date as and when funded on the Closing
Date. Such fee will be in all respects fully earned, due and payable on the Closing Date and non-refundable and non-creditable
thereafter.
(cb) Other
Fees. The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly
agreed between the Borrower and the applicable Agent).
SECTION 2.10 Computation
of Interest and Fees.
All computations of interest
for Base Rate Loans, SONIA Rate Loans and TIBOR Rate Loans shall be made on the basis of a year of three hundred sixty-five (365) days,
or three hundred sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made
on the basis of a three hundred sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for 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, subject to Section 2.12(a), bear interest for
one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.
SECTION 2.11 Evidence
of Indebtedness.
(a) The
Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by
one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulations Section 5f.103-1(c) and proposed Treasury Regulations Section 1.163-5(b),
as agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the Register
and other corresponding accounts and records of the Administrative Agent in respect of such matters, the Register
and other corresponding accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative
Agent) a Note payable to such Lender and its registered assignees,
which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
(b) In
addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain
in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing
the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.
In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of
any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest
error.
(c) Entries
made in good faith by the Administrative Agent in the Register pursuant to Sections 2.11(a) and (b), and by each
Lender in its account or accounts pursuant to Sections 2.11(a) and (b), shall be prima facie evidence of the amount
of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender
and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error;
provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect,
in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement
and the other Loan Documents.
SECTION 2.12 Payments
Generally.
(a) All
payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein and except with respect to an Approved Foreign Currency, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office for Dollar-denominated payments and in Same Day Funds not later than 1:00 p.m. (New
York City time) on the date specified herein. Except as otherwise
expressly provided herein, all payments by the Borrower hereunder in an Approved Foreign Currency shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office
in such Approved Foreign Currency and in Same Day Funds not later than 2:00 p.m. (London time) (or, if earlier, 9:00 a.m. New
York City time) on the dates specified herein. If, for any reason, the Borrower
is prohibited by any Law from making any required payment hereunder in an Approved Foreign Currency, the Borrower shall make such payment
in Dollars in an amount equal to the Dollar Equivalent of such Approved Foreign Currency payment amount. The Administrative Agent
will promptly distribute to each Appropriate Lender its Pro Rata Share (or other applicable share as provided herein) of such payment
in like funds as received by wire transfer to such Lender’s applicable Lending Office. All payments received by the Administrative
Agent after the time specified above shall in each case be deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue.
(b) Except
as otherwise provided herein, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case
may be; provided that if such extension would cause payment of interest on or principal of RFR Loans or Term SOFR Loans to be
made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(c) Unless
the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative
Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact
made to the Administrative Agent in Same Day Funds, then:
(i) if
the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in Same Day Funds at the applicable Overnight Rate, plus any reasonable administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the foregoing; and
(ii) if
any Lender failed to make such payment (including, without limitation, failure to fund participations in respect of any Letter of Credit or Swing Line Loan), such Lender shall forthwith on demand pay to the Administrative
Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available
by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation
Period”) at a rate per annum equal to the applicable Overnight Rate, plus any reasonable administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the foregoing. When such Lender makes payment to the Administrative
Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued
and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such
Lender does not pay such amount (including, without limitation, failure to fund participations in respect of any Letter of Credit or
Swing Line Loan) forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a
demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon
for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative
Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender
or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.
(d) If
any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions
to the applicable Credit Extension set forth in Article IV or in the applicable Incremental Amendment, Extension Amendment
or Refinancing Amendment are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such
funds (in like funds as received from such Lender) to such Lender, without interest.
(e) The
obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and
Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation
on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(f) Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Whenever
any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full
all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents
on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in
the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Obligations
of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner
in which such funds are to be applied, the Administrative Agent may (to the fullest extent permitted by mandatory provisions of applicable
Law), but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Pro
Rata Share (or other applicable share as provided herein) of the
sum of (a) the Outstanding Amount of all Loans outstanding at such time and (b) the Outstanding Amount of all L/C Obligations
outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
SECTION 2.13 Sharing
of Payments.
If, other than as expressly
provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, or the participations in L/C Obligations and
Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff,
or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify
the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or
such subparticipations in the participations in L/C Obligations or Swing Line Loans held
by them, as the case may be, as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans
or such participations, as the case may be, pro rata with(or
in accordance with such other share contemplated hereunder) with each of them; provided that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal
to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further interest thereon. For avoidance of doubt, the provisions
of this paragraph shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement as in effect from time to time (including the application of funds arising from the existence of a Defaulting
Lender) or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant permitted hereunder. The Borrower agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but
subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower
in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence
of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 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 Obligations purchased to the same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
SECTION 2.14 Incremental
Credit Extensions.
(a) Incremental
Commitments. The Borrower may, at any time or from time to time
after the Closing Date, by notice to the Administrative Agent (an “Incremental Loan Request”), request (A) one
or more new commitments (which may be in the form of delayed draw commitments)
in respect of term loans which may be in the same Facility (each,
an “Incremental Term Facility”) as any outstanding Term Loans of an
existing Class of Term Loans (a “Term Loan Increase”) or a new
Class of tTerm
lLoans (each,
an “Incremental Term Facility” and, collectively
with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more increases in the amount
of the Revolving Credit Commitments or any Incremental Revolving Facility
(a “Revolving Commitment Increase”) or the establishment of one or more new revolving credit commitments (each,
an “Incremental Revolving Facility” and, collectively
with any Incremental Term Facility, an “Incremental Facility” and any such new commitments, collectively with any
Revolving Commitment Increases, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit
Commitments, collectively with anythe
Incremental Term Commitments, the “Incremental Commitments”),
whereupon the Administrative Agent shall promptly deliver a copy of such
Incremental Loan Request to each of the Lenders. Incremental Commitments
and Incremental Loans shall be (A) secured by the Collateral on an equal priority basis (without giving effect to the control of
remedies) with the Liens securing the Initial
Term Loans, (B) secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans or (C) unsecured
or not secured by all or any portion of the Collateral.
(b) Incremental
Loans. Any Incremental Commitments effected through the establishment of one or more new revolving credit commitments or new Term
Loans made not in the same
Facility of any existing Class of Term Loans made (or, in the
case of any Incremental Facility in the form of a delayed draw term
loan facility, committed to be made) on an Incremental Facility Closing Date shall be designated a separate Class of Incremental
Commitments for all purposes of this Agreement, except in the case of a Term Loan Increase or a Revolving
Commitment Increase. On any Incremental Facility Closing Date on which any Incremental Term Commitments of any Class are
effected (including through any Term Loan Increase), subject to the satisfaction of the terms and conditions in this Section 2.14,
(i) each Incremental Term Lender of such Class shall make a Loan to the Borrower (or,
in the case of any Incremental Facility in the form of a delayed
draw term loan facility, commit to make a Loan) to the
Borrower (or any Loan Party organized under the laws of the United States, any state thereof, the District of Columbia or any territory
thereof, may be designated as a borrower in respect thereof) (an “Incremental Term Loan”) in an amount equal
to its Incremental Term Commitment of such Class and (ii) each Incremental Term Lender of such Class shall become a Lender
hereunder with respect to the Incremental Term Commitment of such Class and the Incremental Term Loans of such Class made pursuant
thereto. On any Incremental Facility Closing Date on which any Incremental Revolving Credit Commitments of any Class are effected
through the establishment of one or more new revolving credit commitments (including through any Revolving Commitment Increase), subject
to the satisfaction of the terms and conditions in this Section 2.14, (i) each Incremental Revolving Credit
Lender of such Class shall make its Commitment available to the Borrower (or
any Loan Party organized under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, may
be designated as a borrower in respect thereof so long as all obligors under such Incremental Facility are the same as with respect to
the Loans hereunder) (when borrowed, an “Incremental Revolving Credit
Loans” and collectively with any
Incremental Term Loans, an “Incremental
Loans”) in an amount equal to its Incremental Revolving
Credit Commitment of such Class and (ii) each Incremental Revolving Credit Lender of such Class shall become a Lender
hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Credit Loans of
such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of
the Term Loans and be treated as the same Class as any of such Term Loans.
(c) Incremental
Loan Request. Each Incremental Loan Request from the Borrower pursuant to this Section 2.14 shall set forth the requested
amount and proposed terms of the relevant Incremental Term Loans or Incremental Revolving Credit Commitments. Incremental Term Loans
may be made, and Incremental Revolving Credit Commitments may be provided, by any existing Lender (but each existing Lender will not
have an obligation to make any Incremental Commitment, nor will the Borrower have any obligation to approach any existing lenders to
provide any Incremental Commitment) or by any other bank or other financial institution or
other institutional lender (any such other bank or other financial institution or
other institutional lender being called an “Additional Lender”) (each such existing Lender or Additional Lender
providing such, an “Incremental Revolving Credit Lender” or “Incremental Term Lender,” as applicable,
and, collectively, the “Incremental Lenders”); provided that (i) the Administrative Agent, each
Swing Line Lender and and, in
the case of an Incremental Revolving Credit Commitment, each
L/C Issuer shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental
Revolving Credit Commitments
Increases to the extent such consent, if any, would be required under Section 10.07(b) for
an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender, (ii) with respect to
Incremental Term Commitments, any Affiliated Lender providing an Incremental Term Commitment shall be subject to the same restrictions
set forth in Section 10.07(l) as they would otherwise be subject to with respect to any purchase by or assignment to
such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Incremental Revolving Credit Commitments,
unless subsequently purchased from a Defaulting Lender pursuant to Section 10.07(l).
(d) Effectiveness
of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject
to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if
the proceeds of such Incremental Commitments are being used to finance a Permitted
Acquisition, no Event of Default under Sections 8.01(a) or,
solely with respect to the Borrower, Section 8.01(f) shall have occurred and be continuing or would exist
after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall
have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after
giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and
(ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension”
or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided
that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the
reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations
and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in
the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition
as defined in the main transaction agreement governing such Permitted Acquisition;Investment,
prepayment, repayment, redemption, repurchase, defeasance, satisfaction and discharge or other refinancing of any Indebtedness or of
any Equity Interests, that in the case of equity, require irrevocable notice in advance thereof, there shall be no requirement to satisfy
any or all conditions of Section 4.02(i);
(iii) [reserved];
(iv) each
Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an
increments of $1,000,000 (provided that such amount
may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v))
and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall
be in an increments
of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit
set forth in Section 2.14(d)(v));
(v) the
aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments,
determined at the time of incurrence or establishment thereof, as the case may be shall not exceed the sum of (A) the Incremental
Base Amount, plus (B) at
the option of the Borrower, the amount of Indebtedness permitted
to be incurred under clause (x) of Section 7.03(m) at
the time such Indebtedness is incurred (such amount, the “Incremental Reallocated General Debt Amount”); provided
that any Indebtedness incurred pursuant to this clause (B) in lieu of clause (x) of Section 7.03(m) shall reduce
availability under clause (x) of Section 7.03(m) and Section 7.01(cc), plus (C) all voluntary
prepayments, repurchases, redemptions and other retirements of Term
Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary
commitment reductions of Revolving Credit Commitments, Incremental
Equivalent First Lien Debt or other Indebtedness, in each case, secured by Liens on the Collateral (in the case of any revolving credit
facilities (including any Incremental Revolving Facility), any voluntary permanent reduction in the commitments in respect of such Indebtedness
prior to or simultaneous with the Incremental Facility Closing Date)
(including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance
with procedures of the type described in Section 2.05(a)(v) or (y) open-market or other privately negotiated purchases
(including an exchange) pursuant to Section 10.07(l), which shall be credited in an amount equal to the aggregate principal amount
of Loans purchased or retired in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary
prepayments, repurchases, redemptions and other retirements of Incremental
Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitmentpermanent reductions
of Incremental Revolving Credit Commitments, to the extent such Incremental
Term Loans and Incremental Revolving Credit Commitments were obtained pursuant toin
each clause (C) below
or, to the extent funded with a contemporaneous incurrence
of long-term funded Indebtedness (other
than revolving loans, including any Incremental Revolving Facility)), plus (CD)
additional amounts (including at any time prior to the utilization of amounts under clauses (A) and,
(B) and (C) above) so long as
(1) if such Indebtedness is secured by the Collateral on an equal priority
basis (without giving effect to the control of remedies) with the Liens securing the Initial Term Loans, the Consolidated First
Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal
quarters for which financial statements are internally available, as if any Incremental Term Loans or
Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last
day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the
maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not
exceed 4.75 to 1.00 does not exceed (x) 4.75 to 1.00
or (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other permitted Investment, the
Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of any related transactions,
(2) if such Indebtedness is secured by the Collateral on a
junior lien basis
to the Liens securing the Initial Term Loans, the Consolidated Secured
Net Leverage Ratio, determined on a Pro Forma Basis as of the last
day of the most recently ended period of four consecutive fiscal
quarters for which financial statements are internally available, does not exceed (x) 6.00 to 1.00 or (y) in the case of any
such Indebtedness being applied to finance a Permitted Acquisition or other permitted Investment, the Consolidated Secured Net Leverage
Ratio immediately prior to the incurrence of such Indebtedness and consummation of any related transactions and (3) if such Indebtedness
is unsecured (or secured by assets that do not constitute Collateral), either (a) the Consolidated Total Net Leverage Ratio, determined
on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements
are internally available, does not exceed (x) 6.25 to 1.00 or (y) in the case of any such Indebtedness being applied to finance
a Permitted Acquisition or other permitted Investment, the Consolidated Total Net Leverage Ratio immediately prior to the incurrence
of such Indebtedness and consummation of any related transactions or (b) the Consolidated Interest Coverage Ratio, determined on
a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements
are internally available, is not less than (x) 2.00 to 1.00 or (y) in the case of any such Indebtedness being applied to finance
a Permitted Acquisition or other permitted Investment, the Consolidated Interest Coverage Ratio immediately prior to the incurrence of
such Indebtedness and consummation of any related transactions (the amounts under the foregoing clauses (A) and,
(B) and (C) are herein referred to as the “Free
and Clear Incremental Amount”, and the amounts under the foregoing clause (CD)
are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together
with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness(x) Incremental
Term Loans and (y) Incremental Equivalent Debt incurred pursuant to Section 7.03(q) orand
Section 7.03(uw),
in each case, incurred pursuant to clauses (A), (B) and (C) of this Section 2.14(d)(v), at or prior to such time,
are herein referred to as the “Available Incremental Amount”)); and
(vi) such
other conditions as the Borrower, and each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall
agree.
The Borrower may elect to
use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination or
order thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall
be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower
meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio
for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after
the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or
not elected by the Borrower.
For
purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall
be assumed that all commitments under any Incremental Equivalent Debt in
the form of a revolving facility or any Incremental Revolving Facility then being established are fully drawn and,
(b) with respect to any delayed draw term commitments under
any Incremental Facility, the Borrower may elect to test the availability of the Available Incremental Amount either at the time such
commitments are established (assuming such commitments are fully drawn) or solely at the time Incremental Term Loans incurred under such
commitments are incurred, (c) the cash proceeds of any Incremental Facility shall be excluded from any calculation of “net”
Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any
other Pro Forma Adjustments shall be included) and (d) the incurrence
(including by assumption or guarantee) or repayment of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental
Revolving Facility and any other revolving facilities included in such calculation) prior to, or simultaneously with, the event
for which the Pro Forma Compliance determination of such ratio or other test is being made, and/or
any incurrence of Indebtedness under the Revolving Credit Facility or any other revolving facility that is used to finance working capital
needs of Holdings and its Restricted Subsidiaries (as reasonably determined by the Borrower), in each case, shall be disregarded.
(e) Required
Terms. The terms, provisions and documentation of the Incremental Term Loans and Incremental Term Commitments or the Incremental
Revolving Credit Loans and the Incremental Revolving Credit Commitments,
as the case may be, of any Class shall be as agreed between the Borrower and the applicable Incremental Lenders providing such Incremental
Commitments, (and
except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Credit
Commitments, as applicable, each existing on the Incremental Facility Closing Date, shall be reasonably satisfactory tofor
the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties
of, or any fees or other amounts payable to, such Administrative Agent (it being understood);
provided that to the extent any more restrictive financial
maintenance covenant is added for the benefit of anysuch
Incremental Term Loans and Incremental Term
Commitments or the Incremental, such financial maintenance
covenant shall be added for the benefit of the Revolving Credit Loans and Incremental Revolving
Credit Commitments, no consent shall be required from the Administrative Agent or
any of the LendersFacility
that then benefits from a financial maintenance covenant and is remaining outstanding (except to the extent that
such financial maintenance covenant is also added for the benefit of any corresponding
existing applicable only to periods after
the Latest Maturity Date of such Revolving Credit Facility).
In any event:
(i) the
Incremental Term Loans:
(A) shall
rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans,
(BA) subject
to the Permitted Earlier Maturity Indebtedness Exception, shall not mature earlier than the Latest
Maturity Date of any Term Loans outstanding at
the time of incurrence of such Incrementalthe
Initial B-5 Dollar Term Loans,
(CB) subject
to the Permitted Earlier Maturity Indebtedness Exception, shall have a Weighted Average Life to Maturity not shorter than the
remaining Weighted Average Life to Maturity of the Initial B-5 Dollar Term
Loans,
(DC) shall
have an Applicable Rate, and subject to clauses (e)(i)(BA)
and (e)(i)(CB) above
and clause (e)(iii) below, amortization determined by the Borrower and the applicable Incremental Term Lenders, and
(ED) the
Incremental Term Loans may participate on a pro rata basis or less than pro rata basis (but
not on a greater than pro rata basis) in any voluntary orother
than with respect to any mandatory prepayments of Term Loans pursuant to Section 2.05(b)(iii)) in any mandatory prepayments
of Term Loans hereunder, as specified in the applicable Incremental Amendment.,
and
(E) shall
be available in Dollars or any other Approved Currency.
(ii) the
Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Revolving Credit Commitments
and the Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e)(ii); provided
that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(A) any
such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank
pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans,
(B) any
such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not maturenot
(i) mature or provide for mandatory commitment reductions earlier than the Latest Maturity Date of any Revolving Credit LoansCommitments
outstanding at the time of incurrence of such Incremental Revolving Credit Commitments or
(ii) require scheduled amortization,
(CB) the
borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments
(and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments and (3) repayment
made in connection with a permanent repayment and termination of commitments (subject to clause (ED)
below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date shall
be made on a pro rata basis (or, in the case of repayment, on a pro rata
basis or less than a pro rata basis) with all other Revolving Credit Commitments on the Incremental Facility Closing Date,
(DC) subject
to the provisions of Sections 2.03(n) and
2.04(g) to the extent dealing with Swing Line Loans and Letters
of Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity
date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata
basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments on the Incremental Facility
Closing Date (and except as provided in Section 2.03(n) and Section 2.04(g),
without giving effect to changes thereto on an earlier maturity date with respect to Swing Line Loans
and Letters of Credit theretofore incurred or issued),
(ED) the
permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments after
the associated Incremental Facility Closing Date shall be made on a pro
rata basis or less than pro rata basis with all other Revolving Credit Commitments on the Incremental Facility Closing Date, except
that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata
basis as compared to any other Class with a later maturity date than such Class,
(FE) assignments
and participations of Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be governed by the same assignment
and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the Incremental Facility Closing
Date, and
(GF) any
Incremental Revolving Credit Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the
Classes constituting the applicable Revolving Credit Commitments prior to the Incremental Facility Closing Date;
and,
(G) shall
be available in Dollars or any other Approved Currency; and
(iii) the
amortization schedule applicable to any Incremental Term Loans and
the All-In Yield applicable to the Incremental Term Loans or Incremental Revolving Credit Loans of each Class shall be determined
by the Borrower and the applicable new Lenders and shall be set forth in each applicable Incremental Amendment; provided, however,
that with respect to any Loans under Incremental Term Loan Commitments made on or prior
to the date that is 18 months after the Closing Date, if the All-In Yield applicable to such Incremental Term Loans shall be greater
than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with
respect to the Term Loans of any Class denominated in the same
currency as such Incremental Term Loans by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”)
then the interest rate (together with, as provided in the proviso below, the Term SOFR, RFR or Base Rate floor) with respect to each
such Class of Term Loans denominated in such currency shall be increased by the applicable Yield Differential; provided,
further, that, if any Incremental Term Loans include a Term SOFR, RFR or Base Rate floor that is greater than the Term SOFR, RFR
or Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall be included
in the calculation of All-In Yield for purposes of this clause (iii) but only to the extent an increase in the Term SOFR, RFR or
Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in
such case the Term SOFR, RFR and Base Rate floors (but not the Applicable Rate) applicable to the existing Term Loans shall be increased
to the extent of such differential between interest rate floors.
(f) Incremental
Amendment. Commitments (including in the form of delayed draw term loan
commitments) in respect of Incremental Term Loans and Incremental Revolving Credit Commitments
shall become Commitments (or in the case of
an Incremental Revolving Credit Commitment to be provided by an existing Revolving Credit Lender, an
increase in such Lender’s applicable Revolving Credit Commitment), under this Agreement pursuant to an amendment
(an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower,
any Loan Party organized under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof, that may be designated as a borrower in respect thereof (if any), each
Incremental Lender providing such Commitments and acknowledged by the
Administrative Agent; provided that failure to obtain such acknowledgement
shall in no way affect the effectiveness of any Incremental Amendment. The Incremental Amendment may, without the consent of any
other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate,
in the reasonable opinion of the Administrative Agent and the Borrower, to effect the
provisions of this Section 2.14. The Borrower shall provide
the Administrative Agent prompt written notice of any Incremental Amendment pursuant to this Section 2.14 and the Administrative
Agent hereby agrees to (and is directed by each Lender to) acknowledge such Incremental Amendment as promptly as practicable following
such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have
no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any
claims with respect to such acknowledgment. The Borrower (or any Loan Party organized under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof, that may be designated as a borrower in respect thereof) will use
the proceeds of the Incremental Term Loans and Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement.
No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees.
(g) Reallocation
of Revolving Credit Exposure. Upon any Incremental Facility Closing Date on which Incremental Revolving Credit Commitments are effected
through an increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) if the increase relates to
the Revolving Credit Facility, each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Credit Lenders,
and each of the Incremental Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount
thereof, such interests in the Incremental Revolving Credit Loans outstanding on such Incremental Facility Closing Date as shall be necessary
in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving
Credit Lenders and Incremental Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect
to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving
Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all
purposes, a Revolving Credit Loan and (c) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental
Revolving Credit Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum
borrowing and prepayment requirements in Sections 2.02 and 2.05(a) of this Agreement shall not apply to the transactions
effected pursuant to the immediately preceding sentence.
(h) This
Section 2.14 shall supersede any provisions in Section 2.13, 4.02 or 10.01 to the contrary.
(i) Notwithstanding
the foregoing, Incremental Term Facilities and Incremental Revolving Facilities may be established and incurred as a means of effectively
extending the maturity or effecting a repricing or a refinancing,
in whole or in part, without utilizing any of the Available Incremental
Amount, without regard to whether an Event of Default has occurred and is continuing and, without regard to the minimums set forth in
Section 2.14(d)(iv), to the extent that the net cash proceeds from the Incremental
Term Loans and Incremental Revolving Credit Loans, as applicable,
are used to either (x) prepay Term Loans or (y) permanently reduce the Revolving Credit Commitments, Extended Revolving Credit
Commitments or Incremental Revolving Credit Commitments; provided that (i) the Lenders with respect to any Class of Loans or
Commitments being prepaid are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms)
and (ii) the aggregate principal amount of such Class of Loans or Commitments, as the case may be, does not exceed the sum
of (A) the aggregate principal amount of the applicable
Class of Loans or Commitments being prepaid, extended, repriced or refinanced, (B) fees and expenses associated with the such
prepayment (including any prepayment premium, penalties or other call protection) and (C) fees and expenses (including any OID,
upfront fees, commitment fees, amendment fees, arrangement fees, underwriting fees or other fees) related to the establishment and incurrence
of such Incremental Term Facilities and Incremental Revolving Facilities, as applicable.
SECTION 2.15 Refinancing
Amendments.
(a) On
one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any other bank, financial institution or other
institutional lender or investor that agrees to provide any portion of Refinancing Term Loans or Other Revolving Credit Commitments pursuant
to a Refinancing Amendment in accordance with this Section 2.15 (each, an “Additional Refinancing Lender”)
(provided that (i) solely with respect to Other Revolving Credit
Commitments, the Administrative Agent, each Swing Line Lender and each L/C Issuer,
if applicable, shall have consented (not to be unreasonably withheld,
conditioned or delayed) to such Lender’s or Additional Refinancing Lender’s making
such Refinancing Term Loans or providing such Other Revolving Credit Commitments to the extent such consent, if any,
would be required under Section 10.07(b) for an assignment of Loans or Revolving
Credit Commitments, as applicable, to such Lender or Additional Refinancing Lender,
(ii) with respect to Refinancing Term Loans, any Affiliated Lender providing Refinancing Term Loans shall be subject to the same
restrictions set forth in Section 10.07(l) as they would otherwise be subject to with respect to any purchase
by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Other Revolving Credit Commitments),
Credit Agreement Refinancing Indebtedness in respect of all or any portion of any Class,
as selected by the Borrower in its sole discretion, of Term Loans or Revolving Credit Loans (or unused Revolving
Credit Commitments in respect thereof) then outstanding
under this Agreement, in the form of Refinancing Term Loans, Refinancing Term Commitments, Other Revolving Credit Commitments, or Other
Revolving Credit Loans pursuant to a Refinancing Amendment; provided that notwithstanding anything to the contrary in this Section 2.15
or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Other
Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the Other Revolving Credit
Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below))
of Loans with respect to Other Revolving Credit Commitments after the date of obtaining any Other Revolving Credit Commitments shall
be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the provisions of Section 2.03(n) and
Section 2.04(g) to the extent dealing with Swing Line Loans and Letters
of Credit which mature or expire after a maturity date when there exist Other Revolving Credit Commitments with a longer maturity date,
all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis
by all Lenders with Commitments in accordance with their percentage of the Commitments
in respect of Revolving Credit CommitmentsLoans
(and except as provided in Section 2.03(n) and Section 2.04(g),
without giving effect to changes thereto on an earlier maturity date with respect to Swing Line Loans
and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with
respect to, and termination of, Other Revolving Credit Commitments after the date of obtaining any Other Revolving Credit Commitments
shall be made on a pro rata basis with all other Commitments in respect
of Revolving Credit CommitmentsLoans,
except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a
pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations
of Other Revolving Credit Commitments and Other Revolving Credit Loans shall be governed by the same assignment and participation provisions
applicable to Revolving Credit Commitments and Revolving Credit Loans.
(b) The
effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth
in Section 4.02 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative
Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the
Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form
of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation
agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to
ensure that such Credit Agreement Refinancing Indebtedness is provided with the benefit of the applicable Loan Documents. For
the avoidance of doubt, no consent of the Administrative Agent shall be required except to the extent affecting the rights and duties
of, or any fees or other amounts payable to, such Administrative Agent.
(c) Each
issuance of Credit Agreement Refinancing Indebtedness under Section 2.15(a) shall be in an aggregate principal amount
that is (x) not less than $10,000,000 and (y) an integral multiple of $1,000,000 in excess thereof.
(d) Each
of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to a Refinancing Amendment,
without the consent of any other Lenders or any Agent, to the extent
(but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred
pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions
and intent of the third paragraph of Section 10.01 (without the consent of the Required Lenders called for therein)
and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the
reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions
of this Section 2.15, and the Required Lenders
hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.
(e) This
Section 2.15 shall supersede any provisions in Section 2.13, 4.02
or 10.01 to the contrary.
SECTION 2.16 Extension
of Term Loans; Extension of Revolving Credit Loans.
(a) Extension
of Term Loans. The Borrower may at any time and from time to time, in
its sole discretion, request that all or a portion of the Term Loans of a given Class (or
series or tranche thereof) (each, an “Existing Term Loan Tranche”) be amended to extend the scheduled maturity
date(s) with respect to all or a portion of any principal amount of such Term Loans or
to make any other changes to the terms of such Term Loans (excluding any changes to the guarantees, Collateral or payment or lien priority
(unless such change is to make such payment or lien priority junior to the Existing Term Loan Tranche and in such case an Intercreditor
Agreement or subordination agreement shall be entered into) (any such Term Loans which have been so amended, “Extended
Term Loans”) and to provide for other terms consistent with this Section 2.16. In order to establish any Extended
Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders
under the applicable Existing Term Loan Tranche) (each, a “Term Loan Extension Request”) setting forth the proposed
terms of the Extended Term Loans to be established, which shall (x) be identical as offered to each Lender under such Existing Term
Loan Tranche (including as to the proposed interest rates and fees payable) and offered pro rata to each Lender under such Existing Term
Loan Tranche and (y) be identical to the Term Loans under the Existing Term Loan Tranche from which such Extended Term Loans are
to be amended, except that: (i) all or any of the scheduled amortization payments of principal of the Extended Term Loans may be
delayed to later dates than the scheduled amortization payments of principal of the Term Loans of such Existing Term Loan Tranche, to
the extent provided in the applicable Extension Amendment; (ii) (A) the
Effective Yieldinterest
rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts
and prepayment terms and premiums with respect to the Extended Term Loans (whether in the form
of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the
Effective Yieldthose for the Term Loans of such Existing
Term Loan Tranche, in each case, to the extent provided in the applicable Extension Amendment and/or
(B) additional fees and/or premiums may be payable to the Lenders providing such Extended Term Loans in addition to any of the items
contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment; (iii) the
Extension Amendment may provide for other covenants and terms that apply solely to any period after
the Latest Maturity Date that is in effect on the effective date of the Extension Amendment (immediately
prior to the establishment of such Extended Term Loans); and (iv) Extended Term Loans may have prepayment
premiums or call protection as may be agreed by the Borrower and the Lenders thereof; provided that no
Extended Term Loans may be optionally prepaid prior to the date on which the Term Loans under the Existing Term Loan Tranche from which
such Extended Term Loans were amended are repaid in full, unless such optional prepayment is accompanied by at least a pro rata optional
prepayment of such Existing Term Loan Tranche; provided, however, that (A) no Default shall have occurred and be continuing
at the time a Term Loan Extension Request is delivered to Lenders, (B) in no event shall the final maturity date of any Extended
Term Loans of a given Term Loan Extension Series at the time of establishment thereof be earlier than the then Latest Maturity Date
of any then existing Term Loans hereunder, (C) the Weighted Average Life to Maturity of any Extended Term Loans of a given Term
Loan Extension Series at the time of establishment thereof shall be no shorter (other than by virtue of amortization or prepayment
of such Indebtedness prior to the time of incurrence of such Extended Term Loans) than the remaining Weighted Average Life to Maturity
of any Existing Term Loan Tranche, (D) any such Extended Term Loans (and the Liens securing the same) shall be permitted by the
terms of the Intercreditor Agreements (to the extent any Intercreditor Agreement is then in effect), (E(A) all
documentation in respect of such Extension Amendment shall be consistent with the foregoing and (FB)
any Extended Term Loans may participate on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis) in
any voluntary or mandatory repayments or prepayments hereunder, in each case as specified
in the respective Term Loan Extension Request. Any Extended Term Loans amended pursuant to any Term Loan Extension Request shall be designated
a series (each, a “Term Loan Extension Series”) of Extended Term Loans for all purposes of this Agreement; provided
that any Extended Term Loans amended from an Existing Term Loan Tranche may, to the extent provided in the applicable Extension Amendment,
be designated as an increase in any previously established Term Loan Extension Series with respect to such Existing Term Loan Tranche.
Each Term Loan Extension Series of Extended Term Loans incurred under this Section 2.16 shall be in an aggregate
principal amount that is not less than $10,000,0005,000,000.
(b) Extension
of Revolving Credit Commitments. The Borrower may at any time and from time to time,
in its sole discretion, request that all or a portion of the Revolving Credit Commitments or
Incremental Revolving Credit Commitments of a given Class (or
series or tranche thereof) (each, an “Existing Revolver Tranche”) be amended to extend the Maturity Date with
respect to all or a portion of any principal amount of such Revolving Credit Commitments or
Incremental Revolving Credit Commitments or to make any other changes to the terms of such Revolving Credit Commitments or Incremental
Revolving Credit Commitments (excluding any changes to the guarantees, Collateral or payment or lien priority (unless such change is
to make such payment or lien priority junior to the Existing Revolver Tranche and in such case an Intercreditor Agreement or subordination
agreement shall be entered into) (any such Revolving Credit Commitments
or Incremental Revolving Credit Commitments which have been so amended, “Extended Revolving Credit Commitments”)
and to provide for other terms consistent with this Section 2.16. In order to establish any Extended Revolving Credit
Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the
Lenders under the applicable Existing Revolver Tranche) (each, a “Revolver Extension Request”) setting forth the proposed
terms of the Extended Revolving Credit Commitments to be established, which shall (x) be identical as offered to each Lender under
such Existing Revolver Tranche (including as to the proposed interest rates and fees payable) and offered pro rata to each Lender under
such Existing Revolver Tranche and (y) be identical to the Revolving Credit Commitments under the Existing Revolver Tranche from
which such Extended Revolving Credit Commitments are to be amended, except that: (i) the Maturity Date of the Extended Revolving
Credit Commitments may be delayed to a later date than the Maturity Date of the Revolving Credit Commitments of such Existing Revolver
Tranche, to the extent provided in the applicable Extension Amendment; (ii) (A) the
Effective Yieldinterest
rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts
and prepayment terms and premiums with respect to extensions of credit under the
Extended Revolving Credit Commitments (whether in the form of interest rate margin, upfront fees, commitment
fees, original issue discount or otherwise) may be different than the Effective Yield
for extensions of credit underthose for the Revolving
Credit Commitments of such Existing Revolver Tranche, in each case, to the
extent provided in the applicable Extension Amendment and/or (B) additional fees and/or premiums may be payable to the Lenders providing
such Extended Revolving Credit Commitments in addition to any of the items contemplated by the preceding clause (A), in each case,
to the extent provided in the applicable Extension Amendment; (iii) the Extension Amendment may provide for other covenants and
terms that apply solely to any period after the Latest Maturity Date that is in effect on the effective
date of the Extension Amendment (immediately prior to the establishment of such Extended Revolving Credit Commitments);
and (iv) all borrowings under the applicable Revolving Credit Commitments (i.e., the Existing Revolver Tranche and the Extended
Revolving Credit Commitments of the applicable Revolver Extension Series) and repayments thereunder shall be made on a pro rata basis
(except for (I) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings)
and (II) repayments required upon the Maturity Date of the non-extending Revolving Credit Commitments); provided, further,
that (A) no Default shall have occurred and be continuing at the time a Revolver Extension Request
is delivered to Lenders, (B) in no event shall the final maturity date of any Extended Revolving Credit Commitments of a given Revolver
Extension Series at the time of establishment thereof be earlier than the then Latest Maturity Date of any other Revolving Credit
Commitments hereunder, (C) any such Extended Revolving Credit Commitments (and the Liens securing the same) shall be permitted by
the terms of the Intercreditor Agreements (to the extent any Intercreditor Agreement is then in effect) and (D) all
documentation in respect of such Extension Amendment shall be consistent with the foregoing. Any Extended Revolving Credit Commitments
amended pursuant to any Revolver Extension Request shall be designated a series (each, a “Revolver Extension Series”)
of Extended Revolving Credit Commitments for all purposes of this Agreement; provided that any Extended Revolving Credit Commitments
amended from an Existing Revolver Tranche may, to the extent provided in the applicable Extension Amendment, be designated as an increase
in any previously established Revolver Extension Series with respect to such Existing Revolver Tranche. Each Revolver Extension
Series of Extended Revolving Credit Commitments incurred under this Section 2.16 shall be in an aggregate principal
amount that is not less than $5,000,0001,000,000.
(c) Extension
Request. The Borrower shall provide the applicable Extension Request at least three (3) Business
Days prior to the date on which Lenders under the Existing Term Loan Tranche or Existing Revolver Tranche, as applicable, are requested
to respond, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each
case acting reasonably to accomplish the purposes of this Section 2.16. No Lender shall have any obligation to
agree to have any of its Term Loans of any Existing Term Loan Tranche amended into Extended Term Loans or any of its Revolving Credit
Commitments amended into Extended Revolving Credit Commitments, as applicable, pursuant to any Extension Request. Any Lender holding
a Loan under an Existing Term Loan Tranche (each, an “Extending Term Lender”) wishing to have all or a portion of
its Term Loans under the Existing Term Loan Tranche subject to such Extension Request amended into Extended Term Loans and any Revolving
Credit Lender (each, an “Extending Revolving Credit Lender”) wishing to have all or a portion of its Revolving Credit
Commitments under the Existing Revolver Tranche subject to such Extension Request amended into Extended Revolving Credit Commitments,
as applicable, shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified
in such Extension Request of the amount of its Term Loans under the Existing Term Loan Tranche or Revolving Credit Commitments under
the Existing Revolver Tranche, as applicable, which it has elected to request be amended into Extended Term Loans or Extended Revolving
Credit Commitments, as applicable (subject to any minimum denomination requirements imposed by the Administrative Agent). In the event
that the aggregate principal amount of Term Loans under the Existing Term Loan Tranche or Revolving Credit Commitments under the Existing
Revolver Tranche, as applicable, in respect of which applicable Term Lenders or Revolving Credit Lenders, as the case may be, shall have
accepted the relevant Extension Request exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable,
requested to be extended pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, as applicable, subject to Extension
Elections shall be amended to Extended Term Loans or Revolving Credit Commitments, as applicable, on a pro rata basis (subject to rounding
by the Administrative Agent, which shall be conclusive) based on the aggregate principal amount of Term Loans or Revolving Credit Commitments,
as applicable, included in each such Extension Election.
(d) Extension
Amendment. Extended Term Loans and Extended Revolving Credit Commitments shall be established pursuant to an amendment (each, an
“Extension Amendment”) to this Agreement among the Borrower, the Administrative Agent
and each Extending Term Lender or Extending Revolving Credit Lender, as applicable, providing an Extended Term Loan
or Extended Revolving Credit Commitment, as applicable, thereunder, and
acknowledged by the Administrative Agent, which shall be consistent with the provisions set forth in Sections 2.16(a) or
(b) above, respectively (but which shall not require the consent of the
Administrative Agent or any other Lender); provided that failure
to obtain such acknowledgement shall in no way affect the effectiveness of any Extension Amendment. The effectiveness of any Extension
Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02(i) and,
to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) legal opinions, board
resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinion
resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably
satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the
Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Extended Term Loans or Extended
Revolving Credit Commitments, as applicable, are provided with the benefit of the applicable Loan Documents. For
the avoidance of doubt, no consent of any Agent shall be required except to the extent affecting the rights and duties of, or any fees
or other amounts payable to, such Agent. The Borrower may, at its election, specify as a condition to consummating any Extension Amendment
that a minimum amount (to be determined and specified in the relevant Extension Request in the Borrower’s sole discretion and as
may be waived by the Borrower) of Term Loans, Revolving Credit Commitments or Incremental Revolving Credit Commitments (as applicable),
of any or all applicable Classes be tendered. The Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Extension Amendment. Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended
pursuant to an Extension Amendment, without the consent of any Agent or any other
Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Extended Term Loans or Extended
Revolving Credit Commitments, as applicable, incurred pursuant thereto, (ii) modify the scheduled repayments set forth in Section 2.07
with respect to any Existing Term Loan Tranche subject to an Extension Election to reflect a reduction in the principal amount of the
Term Loans thereunder in an amount equal to the aggregate principal amount of the Extended Term Loans amended pursuant to the applicable
Extension (with such amount to be applied ratably to reduce scheduled repayments of such Term Loans required pursuant to Section 2.07),
(iii) modify the prepayments set forth in Section 2.05 to reflect the existence of the Extended Term Loans and
the application of prepayments with respect thereto, (iv) make such other changes to this Agreement and the other Loan Documents
consistent with the provisions and intent of the second paragraph of Section 10.01 (without the consent of any
Agent and the Required Lenders called for therein) and (v) effect such other amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative
Agent and the Borrower, to effect the provisions of this Section 2.16,
and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Extension
Amendment.
(e) No
conversion of Loans pursuant to any Extension in accordance with this Section 2.16 shall constitute a voluntary or mandatory
payment or prepayment for purposes of this Agreement.
(f) This
Section 2.16 shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
SECTION 2.17 Defaulting
Lenders.
(a) Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers
and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this
Agreement shall be restricted as set forth in Section 10.01.
(ii) Reallocation
of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing
by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing
by that Defaulting Lender to L/C Issuers or Swing Line Lender hereunder; third,
if so determined by the Administrative Agent or requested by any L/C Issuer or Swing Line Lender,
to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing
Line Loan or Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default
has occurred and is continuing), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative
Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting
Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders,
or the L/C Issuers or
the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender,
or any L/C Issuer or
the Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations
under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, 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 that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to
that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is
a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its
appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected
by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain
Fees. That Defaulting Lender (x) shall not be entitled to receive any facilitycommitment
fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall
be limited in its right to receive Letter of Credit fees as provided in Section 2.03(h).
(iv) Reallocation
of Pro Rata Share to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing
the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or
Swing Line Loans pursuant to Sections 2.03 and 2.04, the
Pro Rata Share of each Non-Defaulting Lender’s Revolving Credit Loans and L/C Obligations shall be computed without giving effect
to the Commitment of that Defaulting Lender; provided that (i) each such reallocation shall be given effect only if, at the date
the applicable Lender becomes a Defaulting Lender, no Default or Event of Default has occurred and is continuing; and (ii) the aggregate
obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and
Swing Line Loans shall not exceed the positive difference, if any, of (1) the Revolving Credit Commitment of that
Non-Defaulting Lender, minus (2) the aggregate Outstanding Amount
of the Loans of that Lender. 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 that Lender having become a Defaulting Lender, including any
claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation. If
the allocation described in this clause (iv) cannot, or can only partially, be effected, the Borrower shall, without prejudice to
any right or remedy available to it hereunder or under law, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance
with the procedures satisfactory to such L/C Issuer (in its sole discretion).
(b) Defaulting
Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lender and the
L/C Issuers agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender,
the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to
any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent
applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit and
Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Share (without giving
effect to Section 2.17(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments
will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.
ARTICLE III
Taxes, Increased Costs Protection and Illegality
SECTION 3.01 Taxes.
(a) Except
as provided in this Section 3.01, any and all payments made by or on account of any
obligation of the Borrower (the term Borrower under Article III being deemed to include
any Subsidiary for whose account a Letter of Credit is issued)
or any Guarantor under any Loan Document shall be made free and clear of and without deduction or
withholding for any and all present or future taxes, duties, levies, imposts, assessments or withholdings (including backup withholding)
or similar charges imposed by any Governmental Authority including interest, penalties and additions to tax applicable
thereto (collectively, “Taxes”), except
as required by applicable Law. If the Borrower, any Guarantor or other applicable wWithholding
aAgent shall be
required by any Laws to deduct or withhold any Taxes from or in respect
of any sum payable under any Loan Document to any Agent or any Lender, (A) to the extent the Tax in question is an Indemnified Tax,
the sum payable by the Borrower or such Guarantor shall be increased as necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable
to additional sums payable under this Section 3.01), each of such Agent and such Lender receives an amount equal
to the sum it would have received had no such deductions or withholdings
been made, (B) the applicable wWithholding
aAgent shall make
such deductions or withholdings, (C) the applicable wWithholding
aAgent shall pay
the full amount deducted or withheld to the relevant Governmental
Authority in accordance with applicable Laws, and (D) within thirty (30) days after the date of such payment (or, if receipts or
evidence are not available within thirty (30) days, as soon as possible thereafter), if the Borrower or any Guarantor is the applicable
wWithholding aAgent,
the Borrower or such Guarantor, as applicable, shall furnish to such Agent or Lender (as the case may be) the original or a copy
of a receipt evidencing payment thereof or other evidence reasonably acceptable to such Agent or Lender.
(b) In
addition, each Loan Party agrees to pay any and all present or future stamp, court or documentary taxes and any other excise, property,
intangible or mortgage recording taxes, or charges or levies of the same character, imposed by any Governmental Authority, that arise
from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from
the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document (including additions to
tax, penalties and interest related thereto) excluding, in each case, such amountstaxes
or charges that result from an Agent or Lender’s Assignment and Assumption, grant of a participation, transfer or assignment
to or designation of a new applicable Lending Office or other office for receiving payments under any Loan Document (collectively, “Assignment
Taxes”) to the extent such Assignment Taxes result from a connection that the Agent or Lenderassignor
and/or the assignee has with the taxing jurisdiction other than thea connection arising out of the Loan Documents or the transactions therein, except for such Assignment Taxes resulting from an assignment or,
participation or change in Lending Office that is requested or required
in writing by the Borrower (all such non-excluded Taxes described in this Section 3.01(b) being hereinafter
referred to as “Other Taxes”). As soon as practicable
after any payment of Taxes by a Loan Party to a Governmental Authority pursuant to this Section 3.01(b), such Loan Party shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(c) Each
Loan Party agrees to indemnify each Agent and each Lender for (i) the full amount of Indemnified Taxes imposed
with respect to payments hereunder and Other Taxes (including
Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable
by such Agent or such Lender and (ii) any reasonable expenses arising therefrom or with respect thereto, in each case whether or
not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of
such payment or liability prepared in good faith by such Agent or Lender (or by an Agent on behalf of such Lender) and
delivered to the Borrower and the Administrative Agent, accompanied by a written statement thereof setting forth in reasonable
detail the basis and calculation of such amounts shall be conclusive absent manifest error.
(d) Each
Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative
Agent with any documentation prescribed by Law or reasonably requested by
the Borrower or the Administrative Agent certifying as to any entitlement of such Lender to an exemption from, or reduction in,
withholding Tax with respect to any payments to be made to such Lender under theany Loan Documents. Each such Lender shall, whenever a lapse in time or change in
circumstances renders any such documentation expired,
obsolete or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other
appropriate documentation (including any new documentation reasonably requested by the applicable withholdingBorrower
or the Administrative aAgent)
or promptly notify the Borrower and the Administrative Agent in writing of its inabilitylegal
ineligibility to do so. Unless the applicable wWithholding
aAgent has received
forms or other documents satisfactory to it indicating that payments under any Loan Document to or for a Lender are not subject to withholding
Tax or are subject to such Tax at a rate reduced by an applicable tax treaty, the Borrower, the Administrative Agent or other applicable
wWithholding aAgent
shallmay withhold
amounts required to be withheld by applicable Law from such payments at the applicable statutory rate. Notwithstanding any other provision
of this clause (d), a Lender shall not be required to deliver any formdocumentation pursuant to this clause (d) that such Lender is not legally ableeligible
to deliver and if in the Lender’s reasonable judgment completion,
execution and submission of such documentation (other than such documentation set forth in paragraphs (d)(A), (d)(B) and (d)(D) of
this Section) would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender. Without limiting the foregoing:
(A) Each
Lender that is a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative
Agent on or before the date on which it becomes a party to this Agreement (and
from time to time upon the reasonable request of the Borrower or Administrative Agent) two properly completed and duly signed
original copies of Internal Revenue Service Form W-9 (or any applicable
successor form) certifying that such Lender is exempt from U.S. federal
backup withholding.
(B) Each
Lender that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the
Administrative Agent on or before the date on which it becomes a party to this Agreement one(and
from time to time upon the reasonable request of the Borrower or Administrative Agent) whichever of the following is
applicable:
(I) two
properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN
or W-8BEN-E (or any applicable successor forms) claiming eligibility
for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Code,
(II) two
properly completed and duly signed original copies of Internal Revenue Service Form W-8ECI
(or any applicable successor forms),
(III) a
United States Tax Compliance Certificate in the form of Exhibit N claiming the
benefits of the exemption for portfolio interest under Section 881(c) of the Code, and two properly completed and duly signed
original copies of Internal Revenue Service Form W-8BEN
or W-8BEN-E (or any applicable successor form) or
(IV) to
the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), Internal
Revenue Service Form W-8IMY (or any applicable successor forms)
of the Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E,
United States Tax Compliance Certificate, Form W-9, Form W-8IMY and/or any
other required information from each beneficial owner, as applicable and to the extent required under this Section 3.01(d)(i)
as if such beneficial owner were a Lender hereunder (provided that if the Lender is a partnership and
not a participating Lender, and one or more beneficialdirect
or indirect partners of such Lender are claiming the portfolio interest exemption, the United States Tax Compliance Certificate
may be provided by such Lender on behalf of such partner(s)).
(C) Each
Lender that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the
Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time upon the reasonable request
of the Borrower or Administrative Agent) executed copies of any other form and in such number as prescribed by applicable U.S. federal
income tax laws (including the Treasury Regulations) and reasonably requested by the Borrower or the Administrative Agent as a basis
for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Loan
Documents, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative
Agent to determine the withholding or reduction required to be made.
(iD) Without
limiting the provisions of clause (d)(iA),
(B), (C) or (E) of this Section 3.01, if a payment made to a Lender under any Loan Document would be
subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver
to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by
the Borrower or the Administrative Agent, such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for
the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not
complied with such Lender’s obligations under FATCA and, as necessary, to determine
the amount, if any, to deduct and withhold from such payment. Solely
for purposes of this Section 3.01(d)(iiD),
“FATCA” shall include any amendments made to FATCA after the ClosingAmendment
No. 9 Effective Date.
(E) Each
Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation
provided by such Lender to the Administrative Agent pursuant to this Section 3.01(d).
(e) Any
Lender claiming any additional amounts payable pursuant to this Section 3.01 andor
Section 3.04(a) shall, if requested by the Borrower, use its reasonable efforts to change the jurisdiction of
its Lending Office (or take any other measures reasonably requested by the Borrower) if such a change or other measures would reduce
any such additional amounts (including any such additional amounts that may thereafter accrue) and would not, in the sole determination
of such Lender, result in any unreimbursed cost or expense or be otherwise materially disadvantageous to such Lender.
(f) If
any Lender or Agent determines, in its sole discretion exercised in good
faith, that it has receivesd
a refund in respect of any Indemnified Taxes or Other Taxes as to which indemnification or additional amounts have been paid to
it by any Loan Party pursuant to this Section 3.01, it shall promptly remit such refund to such Loan Party (but only
to the extent of indemnification or additional amounts paid by such Loan Party under this Section 3.01 with respect
to Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of the Lender
or Agent, as the case may be, and without interest (other than any interest paid by the relevant taxingGovernmental
aAuthority
with respect to such refund); provided that such Loan Party, upon the request of the Lender or Agent, as the case may be, agrees promptly
to return such refund (plus any penalties, interest or other charges imposed by the relevant taxingGovernmental
aAuthority)
to such partyLender or
Agent in the event such partyLender
or Agent is required to repay such refund to the relevant taxing authorityGovernmental
Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Lender or Agent be required to pay any
amount to a Loan Party pursuant to this paragraph
(f) the payment of which would place the Lender or Agent in a less favorable net after-Tax position than the Lender or Agent would
have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed
and the indemnification payments or additional amounts with respect to such Tax had never been paid. This section shall not be
construed to require the Administrative Agent or any Lender to make available its tTax
returns (or any other information relating to Taxes that it deems confidential) to the Borrower or any other person.
(g) The
Administrative Agent and each Supplemental Agent, if any, shall deliver to the Borrower, on or prior
to the Amendment No. 9 Effective Date (or, in the case of a
Supplemental Agent or a successor Administrative Agent pursuant to Section 9.09 hereof, on or before the date on which it becomes
a Supplemental Agent or the Administrative Agent, as applicable), a copy of a properly completed and duly executed (x) Internal
Revenue Service Form W-9, or (y) Internal Revenue Service Form W-8ECI (with respect to any payments to be received on
its own behalf) and Internal Revenue Service Form W-8IMY (certifying that it is either a “qualified intermediary” within
the meaning of Treasury Regulations Section 1.1441-1(e)(5) that has assumed primary with-holding obligations under the Code,
including Chapter 3 and 4 of the Code, or a “U.S. branch” within the meaning of Section 1.1441-1(b)(2)(iv) of the
United States Treasury Regulations that is treated as a United States person (as
defined in Section 7701(a)(30) of the Code) for purposes of
withholding obligations under the Code) (with respect to any payments received by the Administrative Agent and each Supplemental Agent,
if any, on the account of others), as applicable), with the effect that, in either case, the Borrower will be entitled to make payments
hereunder to the Administrative Agent and each Supplemental Agent, if any, without withholding or deduction on account of U.S. federal
withholding Tax; provided that no Administrative Agent or Supplemental Agent shall be required to provide any documentation under this
Section 3.01(g) that such person is legally ineligible to deliver as a result of a change in Law after the date hereof.
(gh) For
the avoidance of doubt, the term “Lenderapplicable
Law” for purposes of this Section 3.01 shall include each L/C Issuer and Swing
Line Lender and the term “applicable Law” shall include FATCA.
(i) Each
party's obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment
of rights by, or the replacement of, a Lender, the termination of the Commitments, the expiration or cancellation of all Letters of Credit
and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 3.02 Illegality.
If any Lender determines that
any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund RFR Loans (whether denominated in Dollars or any other Approved Currency) or Term SOFR Loans, or to
determine or charge interest rates based upon an RFR or Term SOFR, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent (a) any obligation of such Lender to make or continue RFR Loans or Term SOFR Loans in the affected currency
or currencies, or, in the case of RFR Loans or Term SOFR Loans denominated in Dollars, to convert Base Rate Loans to RFR Loans or Term
SOFR Loans, as applicable, shall be suspended and (b) if such notice asserts the illegality of such Lender making or maintaining
Base Rate Loans the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate
on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to such component of Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice (i) the Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert
all applicable RFR Loans or Term SOFR Loans, as applicable, of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans
of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Term
SOFR component of Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain
such RFR Loans or Term SOFR Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such RFR Loans or Term
SOFR Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon Term
SOFR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference
to the Term SOFR component thereof until the 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 Term SOFR (it being understood that such Lender agrees to so advise the
Administrative Agent once such illegality no longer exists). Upon any such prepayment or conversion of
RFR Loans or Term SOFR Loans, the Borrower shall also pay accrued interest on the amounts
so prepaid or converted and all amounts due (solely limited to the Initial B-3 Dollar Term Loans),
if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender. For the avoidance of doubt, invalidity of Term SOFR determined pursuant to clause (a) of
the definition thereof without giving effect to clause (a)(ii) thereof shall not affect the ability of the Borrower
to incur Daily SOFR Loans pursuant to such clause (a)(ii) of
the definition thereof.
SECTION 3.03 Inability
to Determine Rates.
If either
the Required Lenders or the Administrative Agent reasonably determines
in good faith that (i) for any reason adequate and reasonable means do not exist for determining the EURIBO Rate, TIBOR Rate,
SONIA Rate or Term SOFR for any requested Interest Period, as applicable with respect to a proposed RFR Loan or Term SOFR Loan in a given
Approved Currency, or (ii) that the EURIBO Rate, TIBOR Rate, SONIA Rate or Term SOFR Rate for any
requested Interest Period with respect to a proposed Term SOFR Loan (solely limited to the Initial B-3 Dollar Term Loans) or RFR
Loan in such Approved Currency, as applicable, does not adequately and fairly reflect the cost to such Lenders of funding such Loan,
or that deposits in the applicable Approved Currency in which such proposed RFR Loan or Term SOFR Loan
(solely limited to the Initial B-3 Dollar Term Loans) is to be denominated are not being offered to banks in the applicable
offshore interbank market for the applicable amount and the Interest Period of such RFR Loan or Term
SOFR Loan (solely limited to the Initial B-3 Dollar Term Loans), in each case, in the applicable Approved Currency, the
Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain
RFR Loans or Term SOFR Loans, as applicable, in the affected Approved Currency shall be suspended until the Administrative Agent (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of RFR Loans or a Borrowing of or conversion to Term SOFR Loans, in each case, denominated
in the affected Approved Currency, and with respect to Term SOFR Loans make any such request into a request for a Borrowing of Daily
SOFR Loans, or, failing that, will be deemed to have converted such request, if applicable, into a request for a Borrowing of Base Rate
Loan in the amount specified therein.
SECTION 3.04
Increased Cost and Reduced Return; Capital Adequacy; Reserves.
(a) If
any Lender reasonably determines that as a result of the introduction of or any change in or in the interpretation of any Law, in each
case after the Closing Date, or such Lender’s compliance therewith, there shall be any increase in the cost to such Lender of agreeing
to make or making, funding or maintaining any RFR Loans or Term SOFR Loans or (as the case may be) issuing or participating in Letters
of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Indemnified Taxes
or Other Taxes, or any Taxes excluded from the definition of Indemnified Taxes under exceptions (i) through (v) thereof or
(ii) reserve requirements contemplated by Section 3.04(c)) and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining RFR Loan or Term SOFR Loan (or of maintaining its obligations to make any Loan), or to reduce
the amount of any sum received or receivable by such Lender, then from time to time within fifteen (15) days after demand by such Lender
setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with
Section 3.06), the Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost
or reduction. Notwithstanding anything herein to the contrary, for all purposes under this Agreement, (x) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and
(y) all requests, rules, guidelines or directives promulgated by the Bank for International sSettlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall in each case be deemed to be a change in law, regardless of the date enacted, adopted or issued;
provided that to the extent any increased costs or reductions are incurred by any Lender as a result of any requests, rules, guidelines
or directives promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act or pursuant to Basel III after the Closing
Date, then such Lender shall be compensated pursuant to this Section 3.04 only if such Lender imposes such charges under other syndicated
credit facilities involving similarly situated borrowers that such Lender is a lender under.
(b) If
any Lender determines that the introduction of any Law regarding capital adequacy or any change therein or in the interpretation thereof,
in each case after the Closing Date, or compliance by such Lender (or its Lending Office) therewith, has the effect of reducing the rate
of return on the capital of such Lender or any Person controlling such Lender as a consequence of such Lender’s obligations hereunder
(taking into consideration its policies with respect to capital adequacy and such Lender’s desired return on capital), then from
time to time upon demand of such Lender setting forth in reasonable detail the charge and the calculation of such reduced rate of return
(with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower shall pay to
such Lender such additional amounts as will compensate such Lender for such reduction within fifteen (15) days after receipt of such
demand.
(c) The
Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves, capital or liquidity with
respect to liabilities or assets consisting of or including eurocurrency funds or deposits, additional interest on the unpaid principal
amount of each applicable RFR Loan or Term SOFR Loan of the Borrower equal to the actual costs of such reserves, capital or liquidity
allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive in the absence
of manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio, capital or liquidity requirement
or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the
Commitments or the funding of any RFR Loans or Term SOFR Loan of the Borrower, such additional costs (expressed as a percentage per annum
and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan
by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each
case shall be due and payable on each date on which interest is payable on such Loan; provided the Borrower shall have received at least
fifteen (15) days’ prior notice (with a copy to the Administrative Agent) of such additional interest or cost from such Lender.
If a Lender fails to give notice fifteen (15) days prior to the relevant Interest Payment Date, such additional interest or cost shall
be due and payable fifteen (15) days from receipt of such notice.
(d) Failure
or delay on the part of any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of
such Lender’s right to demand such compensation.
(e) If
any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Borrower, use commercially
reasonable efforts to designate another Lending Office for any Loan or Letter of Credit affected by such event; provided that
such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer
no material economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section 3.04(e) shall
affect or postpone any of the Obligations of the Borrower or the rights of such Lender pursuant to Sections 3.04(a), (b),
(c) or (d).
SECTION 3.05
Funding Losses[Reserved].
Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of:
(a) any
continuation, conversion, payment or prepayment of any RFR Loan or Term SOFR Loan (solely limited to Initial B-3 Dollar Term Loans) of
the Borrower on a day other than the last day of the Interest Period for such Loan;
(b)
any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow,
continue or convert any RFR Loan or Term SOFR Loan (solely limited to Initial B-3 Dollar Term Loans) of the Borrower on the date or
in the amount notified by the Borrower, including any loss or expense (excluding loss of anticipated profits) arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained; or
(c) any failure by the Borrower to make payment of any Loan or drawing
under any Letter of Credit (or interest due thereon) denominated in an Approved Foreign Currency on its scheduled due date or any
payment thereof in a different currency.
For
purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have
funded each RFR Loan made by it at the RFR or Term SOFR Loan (solely limited to the Initial B-3 Dollar Term Loans)
made by it at Term SOFR, as applicable, for such Loan by a matching deposit or other borrowing in the offshore interbank market for the
applicable currency for a comparable amount and for a comparable period, whether or not such RFR Loan or Term SOFR Loan (solely limited
to the Initial B-3 Dollar Term Loans) was in fact so funded.
SECTION 3.06
Matters Applicable to All Requests for Compensation.
(a) Any
Agent or any Lender claiming compensation under this Article III shall deliver a certificate to the Borrower setting forth
the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In determining
such amount, such Agent or such Lender may use any reasonable averaging and attribution methods.
(b)
With respect to any Lender’s claim for compensation under Sections 3.01, 3.02, 3.03
or 3.04, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and
eighty (180) days prior to the date that such Lender notifies the Borrower of the event that gives rise to such claim; provided
that if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be extended to
include the period of retroactive effect thereof. If any Lender requests compensation by the Borrower under Section 3.04,
the Borrower may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make
or continue from one Interest Period to another applicable RFR Loan, to make Term SOFR Loans
(solely limited to the Initial B-3 Dollar Term Loans), or, if applicable, to convert Base Rate Loans into RFR Loans or
Term SOFR Loans, until the event or condition giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.06(c) shall be applicable); provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(c) If
the obligation of any Lender to make or continue any RFR Loan or Term SOFR Loan (solely limited to the
Initial B-3 Dollar Term Loans), or to convert Base Rate Loans into RFR Loans or Term
SOFR Loans (solely limited to the Initial B-3 Dollar Term Loans), as applicable, shall be suspended pursuant to Section 3.06(b) hereof,
such Lender’s applicable RFR Loans or Term SOFR Loans (solely limited to the Initial B-3 Dollar
Term Loans), shall be automatically converted into Base Rate Loans (or, if such conversion is not possible, repaid) on
the last day(s) of the then current Interest Period(s) for such RFR Loans or Term SOFR Loans
(solely limited to the Initial B-3 Dollar Term Loans) (or, in the case of an immediate conversion required by Section 3.02,
on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified
in Sections 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:
(i) to
the extent that such Lender’s RFR Loans or Term SOFR Loans, as applicable, have
been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s applicable RFR Loans
or Term SOFR Loans, as applicable, shall be applied instead to its Daily
SOFR Loans or Base Rate Loans, as applicable; and
(ii) all
Loans that would otherwise be made or continued from one Interest Period to another by such Lender as RFR Loans or
Term SOFR Loans, as applicable, shall be made or continued instead as Daily SOFR Loans or Base Rate Loans (if possible),
as applicable, and all Base Rate Loans of such Lender that would otherwise be converted into RFR Loans or
Term SOFR Loans, as applicable, shall remain as Base Rate Loans.
(d) If
any Lender gives notice to the Borrower (with a copy to the Administrative Agent) that the circumstances specified in Sections 3.02,
3.03 or 3.04 hereof that gave rise to the conversion of any of such Lender’s RFR Loans or
Term SOFR Loans, as applicable, pursuant to this Section 3.06 no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist) at a time when RFR Loans or Term SOFR Loans made
by other Lenders under the applicable Facility are outstanding, if applicable, such Lender’s Base Rate Loans shall be automatically
converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding RFR Loans or
Term SOFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding
RFR Loans or Term SOFR Loans under such Facility and by such Lender are held pro rata
(as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments for the applicable
Facility.
SECTION 3.07
Replacement of Lenders under Certain Circumstances.
(a) If
at any time (i) the Borrower becomes obligated to pay additional amounts or indemnity payments described in Section 3.01
(with respect to Indemnified Taxes) or Section 3.04 as a result of any condition described in such Sections or any
Lender ceases to make any RFR Loans or Term SOFR Loans or
RFR Loans, in each case, as a result of any condition described in Section 3.02 or Section 3.04,
(ii) any Lender becomes a Defaulting Lender or (iii) any Lender becomes a Non-Consenting Lender, then the Borrower,
may so long as no Event of Default has occurred and is continuing, at its sole cost and expense, on ten
(10)five Business Days’ prior written notice
to the Administrative Agent and such Lender, (x) replace such Lender by causing such Lender to (and such Lender shall be obligated
to) assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrower in such instance) all of
its rights and obligations under this Agreement (in respect of any applicable Facility only in the case of clause (i) or (ii) or,
with respect to a Class vote, clause (iii) above)
to one or more Eligible Assignees (or with respect to any assignment to
any Affiliated Lender, pursuant to Section 10.07(l)); provided that neither the Administrative Agent nor any Lender shall
have any obligation to the Borrower to find a replacement Lender or other such Person; and provided, further, that (A) in the case
of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant
to Section 3.01 (with respect to Indemnified Taxes), such assignment will result in a reduction in such compensation
or payments and (B) in the case of any such assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable
Eligible Assignees shall have agreed to, and shall be sufficient (together with all other consenting Lenders) to cause the adoption of,
the applicable departure, waiver or amendment of the Loan Documents; or (y) terminate the Commitment of such Lender or L/C Issuer
(in respect of any applicable Facility only in the case of clauses
(i) or clausethrough
(iii)), as the case may be, and (1) in the case of a Lender (other than an L/C Issuer), repay all Obligations of the
Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date and (2) in
the case of an L/C Issuer, repay all Obligations of the Borrower owing to such L/C Issuer relating to the Loans and participations held
by the L/C Issuer as well as all Letters of Credit issued by such L/C Issuer
as of such termination date and cancelarrange
cancellation or backstop on terms satisfactory to such L/C Issuer any Letters of Credit issued by it; provided that in the case
of any such termination of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders)
to cause the adoption of the applicable departure, waiver or amendment of the Loan Documents and such termination shall be in respect
of any applicable Facility only in the case of clause (i) or (ii) or,
with respect to a Class vote, clause (iii).
(b) Any
Lender being replaced pursuant to Section 3.07(a)(x) above shall (i) execute and deliver an Assignment and
Assumption with respect to such Lender’s applicable Commitment and outstanding Loans and participations in L/C Obligations and
Swing Line Loans in respect thereof, and (ii) deliver any Notes evidencing such Loans to the Borrower or Administrative
Agent. Pursuant to such Assignment and Assumption, (A) the assignee Lender shall acquire all or a portion, as the case may be, of
the assigning Lender’s Commitment and outstanding Loans and participations in L/C Obligations and
Swing Line Loans, (B) all obligations of the Borrower owing to the assigning Lender relating to the Loans, Commitments
and participations so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with such Assignment
and Assumption and (C) upon such payment and, if so requested by the assignee Lender, delivery to the assignee Lender of the appropriate
Note or Notes executed by the Borrower, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute
a Lender hereunder with respect to such assigned Loans, Commitments and participations, except with respect to indemnification provisions
under this Agreement, which shall survive as to such assigning Lender. In connection with any such replacement, if any such Non-Consenting
Lender or Defaulting Lender does not execute and deliver to the Administrative Agent a duly executed Assignment and Assumption reflecting
such replacement within five (5) Business Days ofon
the date on which the assignee Lender executes and delivers such Assignment and Assumption to such Non-Consenting Lender or Defaulting
Lender, then such Non-Consenting Lender or Defaulting Lender shall be deemed to have executed and delivered such Assignment and Assumption
without any action on the part of the Non-Consenting Lender or Defaulting Lender.
(c) Notwithstanding
anything to the contrary contained above, any Lender that acts as an L/C Issuer may not be replaced hereunder at any time that it has
any Letter of Credit outstanding hereunder unless arrangements reasonably satisfactory to such L/C Issuer (including the furnishing of
a backustop standby
letter of credit in form and substance, and issued by an issuer reasonably satisfactory to such L/C Issuer or the depositing of cash
collateral into a cash collateral account in amounts and pursuant to arrangements reasonably satisfactory to such L/C Issuer) have been
made with respect to each such outstanding Letter of Credit and the Lender that acts as the Administrative Agent may not be replaced
hereunder except in accordance with the terms of Section 9.09.
(d) In
the event that (i) the Borrower or the Administrative Agent has requested that the Lenders consent to a departure or waiver of any
provisions of the Loan Documents or agree to any amendment thereto, (ii) the consent, waiver or amendment in question requires the
agreement of each Lender, each affected Lender or each affected Lender of a certain Class in accordance with the terms of Section 10.01
or all the Lenders with respect to a certain Class of the Loans and (iii) the Required Lenders (or, in the case of a consent,
waiver or amendment involving all affected Lenders of a certain Class, the Required Class Lenders as applicable) have agreed to
such consent, waiver or amendment, then any Lender who does not agree to such consent, waiver or amendment shall be deemed a “Non-Consenting
Lender.”.
SECTION 3.08
Survival.
All
of the Borrower’sEach party’s obligations
under this Article III shall survive the resignation or removal
of the Administrative Agent or any assignment of rights, or the replacement of, a Lender, the termination of the Aggregate Commitments
and repayment, satisfaction or discharge of all other Obligations
hereunder or under any Loan Document.
ARTICLE IV
Conditions
Precedent to Credit Extensions
SECTION 4.01
Conditions to Initial Credit Extension.
The obligation of each Lender
to make a Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent, except as
otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or
pdf copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent and its legal
counsel:
(i) a
Committed Loan Notice in accordance with the requirements hereof;
(ii) executed
counterparts of this Agreement;
(iii) each
Collateral Document set forth on Schedule 1.01B required to be executed on the Closing Date as indicated on such schedule, duly
executed by each Loan Party thereto, together with (subject to the last paragraph of this Section 4.01):
(A) certificates,
if any, representing the Pledged Equity in the Borrower and, to the extent received from the Seller after Holdings’ use of commercially
reasonable efforts to obtain such Pledged Equity, in each wholly-ownedwholly
owned Domestic Subsidiary (other than those described under clause (b) of the definition of “Excluded Subsidiary”)
accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt referred to
therein (including the Intercompany Note) indorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative
Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or
its counsel);
(B) copies
of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions
that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement
on assets of Holdings, the Borrower and each Subsidiary Guarantor that is party to the Security Agreement, covering the Collateral described
in the Security Agreement; and
(C) evidence
that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date or that the Administrative
Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise
provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) subject
to the last paragraph of this Section 4.01 and Section 6.16,
all actions necessary to establish that the Collateral Agent will have (i) a perfected first priority security interest in the Fixed
Asset Collateral (as defined in this Agreement as of the Closing Date) and
(ii) a perfected second priority security interest in the ABL Priority Collateral (as
defined in this Agreement as of the Closing Date) (in each case, subject to Liens permitted under Section 7.01 which
by operation of law of contract would have priority over the Liens securing the Obligations) shall have been taken;
(v) such
certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization
of each Loan Party, certificates of resolutions or other action, incumbency certificates, certificates of incorporation and/or other
certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(vi) an
opinion from Simpson Thacher & Bartlett LLP, New York counsel to the Loan Parties;
(vii) a
solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower
(after giving effect to the Transactions) substantially in the form attached hereto as Exhibit E-2;
(viii) a
certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming satisfaction of the conditions set
forth in Sections 4.01(h), (i) and (j);
(ix) the
Perfection Certificate, duly completed and executed by the Loan Parties; and
(x) copies
of recent UCC, tax and judgment Lien searches in each jurisdiction reasonably requested by the Administrative Agent, and searches of
the United States Patent and Trademark Office and the United States Copyright Office with respect to the Loan Parties.
(b) The
Closing Fees and all fees and expenses due to the Lead Arrangers and their Affiliates required to be paid on the Closing Date and (in
the case of expenses) invoiced at least three Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower)
shall have been paid from the proceeds of the initial funding under the Facilities.
(c) Prior
to or substantially simultaneously with the initial Credit Extensions, the Borrower shall have received at least $1,040,000,000 in gross
cash proceeds from the issuance of the Ddollar
Ssenior Nnotes
and €235,000,000 in gross cash proceeds from the issuance of the Eeuro
Ssenior Nnotes.
(d) The
Administrative Agent shall have received reasonably satisfactory evidence that prior to or substantially simultaneously with the initial
Credit Extensions the Refinancing (as such term was defined in the Credit
Agreement as of the Closing Date) has been consummated.
(e) The
Lead Arrangers shall have received the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements
(as such terms were defined in the Credit Agreement as of the Closing Date).
(f) The
Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about
the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations,
including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing
Date.
(g) Prior
to or substantially simultaneously with the initial Credit Extensions, the Borrower and the other parties thereto shall have entered
into the ABL Credit Agreement and the ABL Credit Agreement shall be effective (in
each case, as defined in this Agreement as of the Closing
Date).
(h) Since
December 31, 2013, there has been no effect, change, event, occurrence, development or circumstance that has had, or would reasonably
be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Purchase Agreement as in effect
on April 4, 2014) on the Company.
(i)
The Acquisition shall have been consummated, or shall be consummated substantially concurrently with the
initial borrowing under any of the Facilities, in accordance with the terms of the Purchase Agreement. The Purchase Agreement
shall not have been amended or waived in any material respect by Borrower or any of its Affiliates, nor shall Borrower or any of its
Affiliates have given a material consent thereunder, in a manner materially adverse to the Lenders (in their capacity as such)
without the consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being
understood and agreed that any change to the definition of “Material Adverse Effect” contained in the Purchase Agreement
shall be deemed to be materially adverse to the Lenders).
(j) (A) The
Purchase Agreement Representations and the Specified Representations shall be true and correct in all material respects on the Closing
Date (or in all respects, if any such Purchase Agreement Representation or Specified Representation is already qualified by materiality);
provided that any reference to “Material Adverse Effect” in such Purchase Agreement Representations shall be deemed
to refer to “Material Adverse Effect” (as defined in the Purchase Agreement as in effect on April 4, 2014); and (B) the
Equity Contribution shall have been consummated and the Borrower shall have received the proceeds from the Equity Contribution.
(k) A
completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each
Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance),
duly executed and acknowledged by the appropriate Loan Parties, together with evidence of flood insurance, to the extent required under
Section 6.07(c) hereof.
Without limiting the generality
of the provisions of Section 9.03(b), for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Notwithstanding anything herein
to the contrary, it is understood that, other than with respect to the execution and delivery of those certain Collateral Documents required
to be delivered on the Closing Date pursuant to Schedule 1.01B and any UCC Filing Collateral (as defined below), to the extent
any Lien on any Collateral is not provided and/or perfected on the Closing Date after Holdings’ and the Borrower’s use of
commercially reasonable efforts to do so, the provision and/or perfection of a Lien on such Collateral shall not constitute a condition
precedent for purposes of this Section 4.01, but instead shall be required to be delivered after the Closing Date in accordance
with Sections 6.11, and
6.13 and 6.16; provided that Holdings and the Borrower shall have
delivered all Pledged Equity referred to in Section 4.01(a)(iii)(A). For purposes of this paragraph, “UCC Filing
Collateral” means Collateral, including Collateral constituting investment property, for which a security interest can be perfected
by filing a UCC-1 financing statement.
SECTION 4.02
Conditions to All Credit Extensions.
The obligation of each Lender
to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type,
or a continuation of RFR Loans or Term SOFR Loans and other than a Request for Credit Extension forin
connection with an Incremental FacilityAmendment
(or the funding of any delayed draw term loans in connection therewith), which shall be governed by Section 2.14(d)),
other than on the Closing Date, is subject to the following conditions precedent in
each case, subject to the provisions set forth herein in connection with Limited Condition Transactions:
(i) The
representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and
correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the date of such Credit Extension with
the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an
earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(ii) No
Default shall exist or would result from such proposed Credit Extension or from the application of the proceeds therefrom.
(iii)
The Administrative Agent and, if applicable, the relevant L/C Issuer or the Swing
Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension
after the Closing Date (other than a Committed Loan Notice requesting
only a conversion of Loans to the other Type, or a continuation of RFR Loans or Term SOFR Loans) submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in Sections 4.02(i) and (ii) (or, in the case
of a Request for Credit Extension forin
connection with an Incremental FacilityAmendment,
the conditions specified in Section 2.14(d)) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
Representations and Warranties
The Borrower,
Holdings (solely to the extent applicable to it) and each of the Subsidiary Guarantors party hereto represent and warrant to the
Agents and the Lenders at the time of each applicable Credit Extension
that:
SECTION 5.01
Existence, Qualification and Power; Compliance with Laws.
Each Loan Party and each Restricted
Subsidiary (a) is a Person duly organized, incorporated or formed,
validly existing and in good standing (where relevant) under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority to (i) own or lease its assets and carry on its business as currently conducted and (ii) in
the case of the Loan Parties, execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and in good standing (where relevant) under the Laws of each jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs and injunctions and
(e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted;
except in each case, referred to in clause (a) (other than with respect to the Borrower), (b)(i) (other than with respect to
the Borrower), (c), (d) and (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 5.02
Authorization; No Contravention.
The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation
of the Transactions, are within such Loan Party’s corporate or other powers, (a) have been duly authorized
by all necessary corporate or other organizational action, and (b) do not (i) contravene the terms of any of such Person’s
Organizational Documents, (ii) conflict with or result in any
breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require
any payment to be made under (x) any Contractual Obligation to which such Person is a party or affecting such Person or the properties
of such Person or any of its Subsidiaries or (y) any material order, injunction, writ or decree of any Governmental Authority or
any arbitral award to which such Person or its property is subject, or (iii) violate any applicable Law; except with respect to
any conflict, breach or contravention or,
payment (but not creation of Liens) or violation referred
to in clauses (b)(i),
(b)(ii) and (xb)(iii) above,
to the extent that such violation, conflict, breach, contravention or payment cwould
not reasonably be expected to have a Material Adverse Effect.
SECTION 5.03
Governmental Authorization; Other Consents.
No material approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or
any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant
by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens
created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for
(i) filings, recordings and registrations with Governmental Authorities (including
the United States Patent and Trademark Office and the United States Copyright Office, as applicable) necessary to perfect the
Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations,
actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect (except to the extent
not required to be obtained, taken, given or made or be in full force and effect pursuant to the Collateral and Guarantee Requirement)
and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain
or make cwould not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.04
Binding EffectExecution,
Delivery and Enforceability.
This Agreement and each other
Loan Document has been duly executed and delivered by each Loan Party that is a party thereto. This Agreement and each other Loan Document
constitutes, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is a party thereto in
accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity,
(ii) the need for filings, recordations and registrations necessary to create or perfect the Liens on the Collateral granted by
the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate
to pledges, if any, of Equity Interests in Foreign Subsidiaries.
SECTION 5.05
Financial Statements; No Material Adverse Effect.
(a) (i) The Audited Financial Statements fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP
consistently applied throughout the periods covered thereby, except as otherwise expressly noted therein.
(ii) The
Unaudited Financial Statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as
of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP consistently applied throughout
the periods covered thereby, except as otherwise expressly noted therein.
(ba) The
forecasts of consolidated balance sheets and consolidated statements of income and cash flow of Holdings and its Subsidiaries which have
been furnished to the Administrative Agent prior to the Closing Date have been prepared in good faith on the basis of the assumptions
stated therein, which assumptions were believed to be reasonable at the time of preparation of such forecasts, it being understood that
actual results may vary from such forecasts and that such variations may be material.
(cb) Since
December 31, 20132023,
there has been no event or circumstance, either individually or in the aggregate, that has had or cwould
reasonably be expected to have a Material Adverse Effect.
(dc) As
of the Closing Date, none of the Borrower and its Subsidiaries has any Indebtedness or other obligations or liabilities, direct or contingent
(other than (i) the liabilities reflected on Schedule 5.05, (ii) obligations arising under the Loan Documents,
the ABL Credit Agreement or under the Senior Notes Documents and (iii) liabilities incurred in the ordinary course
of business that, either individually or in the aggregate, have not had nor cwould
reasonably be expected to have a Material Adverse Effect).
SECTION 5.06 Litigation.
Except as set forth on Schedule
5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing,
at law, in equity, in arbitration or before any Governmental Authority, by or against the BorrowerHoldings or any of its Restricted Subsidiaries or against any of their properties or revenues that either individually or in the aggregate,
cwould reasonably
be expected to have a Material Adverse Effect.
SECTION 5.07 [Reserved].
SECTION 5.08 Ownership
of Property; Liens; Real Property.
(a) The
BorrowerHoldings and each of its Restricted Subsidiaries
has good record title to, or valid leasehold interests in, or easements or other limited property interests in, all Real Property which
is necessary in the ordinary conduct of its business, free and clear of all Liens except as set forth on Schedule 5.08 hereto
and except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets
for their intended purposes and Liens permitted by Section 7.01 and except where the failure to have such title or other
interest cwould
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b) As
of the Closing Date, Schedule 7 to the Perfection Certificate dated as of the Closing Date
contains a true and complete list of each Material Real Property owned by
the Borrower and the Subsidiaries.
SECTION 5.09
Environmental Matters.
Except as specifically disclosed in Schedule
5.09(a) or except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) each
Loan Party and its respective properties and operations are and, other than any matters which have been finally resolved without
further liability or obligation, have been in compliance with all Environmental Laws, which includes obtaining, maintaining and
complying with all applicable Environmental Permits required under such Environmental Laws to carry on the business of the Loan Parties;
(b) the
Loan Parties have not, other than any matters which have been finally resolved
without further liability or obligations, received any written notice that alleges any of them is in violation of or potentially
liable under any Environmental Laws and none of the Loan Parties nor any of the Real Property owned, leased,
operated or licensed to a franchisee (subject to, in the case of such franchised Real Property not managed by the Loan Parties or Subsidiaries
or their Affiliates, the knowledge of the Borrower) or operated
by any Loan Party or Subsidiary is the subject of any claims, investigations,
liens, demands, or judicial, administrative or arbitral proceedings pending or, to the knowledge of the Borrower, threatened, under or
relating to any Environmental Law;
(c) to
the knowledge of the Borrower, there has been no Release of Hazardous Materials,
on, at, under or from any Real Property or facilities currently or formerly owned, leased, operated
or licensed to a franchisee (subject to, in the case of such franchised Real Property not or
operated by the Loan Parties or Subsidiaries or their Affiliates, the knowledge of the Borrower)
by any Loan Party or Subsidiary, or arising out of the conduct of the
Loan Parties that cwould
reasonably be expected to require investigation, remedial activity or corrective action or cleanup by,
or on behalf of, any Loan Party or Subsidiary or could reasonably be expected to result in any Environmental Liability;
and
(d) to
the knowledge of the Borrower, there are no facts, circumstances or conditions arising out of or relating to the Loan Parties
or any of their respective operations or any facilities currently or, to the knowledge of the Borrower, formerly owned, leased,
operated or licensed to a franchisee (subject to, in the case of such franchised Real Property not operated by the Loan Parties or Subsidiaries
or their Affiliates, the knowledge of the Borrower) or operated by any of the Loan Parties or Subsidiaries, that could reasonably be expected to require investigation,
remedial activity or corrective action or cleanup by, or on behalf of, any Loan Party or Subsidiary or couldthat
would reasonably be expected to result in any Environmental Liability; and.
(e) the
Borrower has made available to the Administrative Agent all environmental reports, studies, assessments, audits, or other similar documents
containing information regarding any Environmental Liability that are in the possession or control of
the Borrower or any Loan Party or Subsidiary.
SECTION 5.10 Taxes.
Except as would not, either
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each of the Loan Parties and their Subsidiaries
have filed all non-U.S. and U.S.
federal, state and other tTax
returns required to be filed by them, and have paid all non-U.S.
and U.S. federal, state and other Taxes levied or imposed upon them or their properties, that are due and payable (including
in their capacity as a withholding agent), except those that are being contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves are being maintained
in accordance with GAAP. Except as described on Schedule 5.10, there is no proposed Tax deficiency or assessment known
to any of the Loan Parties against any of the Loan Parties that would, if made, individually or in the aggregate, have a Material Adverse
Effect.
SECTION 5.11 ERISA
Compliance.
(a) Except
as set forth on Schedule 5.11(a) or as would
not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan maintained by
a Loan Party or any ERISA Affiliate is in compliance with the applicable
provisions of ERISA and the Code and the regulations and published interpretations thereunder and other federal or state Laws.
(b) (i) No
ERISA Event has occurred during the six-year period prior to the date on which this representation is
made or deemed made or is reasonably expected to occurand
is continuing; (ii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA);
(iii) neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections
4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) neither
any Loan Party nor any ERISA Affiliate has engaged in a transaction that cwould
be subject to Sections 4069 or Section 4212(c) of
ERISA, except, with respect to each of the foregoing clauses (i) through
(iv) of this Section 5.11(b), as would not reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect.
(c) With
respect to each Pension Plan, the adjusted funding target attainment percentage (as defined in Section 436 of the Code), as determined
by the applicable Pension Plan’s Eenrolled
Aactuary under Sections
436(j) and 430(d)(2) of the Code and all applicable regulatory guidance promulgated thereunder (“AFTAP”),
would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect.”
Neither any Loan Party nor any ERISA Affiliate maintains or contributes to a Plan that is, or is expected to be, in
at-risk status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code) in each case, except as
would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 5.12 Subsidiaries;
Equity Interests.
As of the Closing Date (after
giving effect to the Transactions), no Loan Party has any Subsidiaries (other than Excluded Subsidiaries pursuant to clause (b) of
the definition thereof) other than those specifically disclosed in Schedule 5.12, and all of the outstanding Equity Interests
owned by the Loan Parties (or a Subsidiary of any Loan Party) in such material Subsidiaries have been validly issued and are fully paid
and all Equity Interests owned by a Loan Party in such material Subsidiaries are owned free and clear of all Liens except (i) those
created under the Collateral Documents and (ii) any Lien that is permitted under Section 7.01. As
of the Closing Date, Schedules 1(a) and 9(a) to the Perfection Certificate (a) set forth the name and jurisdiction of
each Domestic Subsidiary that is a Loan Party and (b) set forth the ownership interest of the Borrower and any other Guarantor in
each wholly owned Subsidiary (other than Excluded Subsidiaries pursuant to clause (b) of the definition thereof), including the
percentage of such ownership.
SECTION 5.13 Margin
Regulations; Investment Company Act.
(a) (i) The
Borrower is not engaged nor will it engage, principally or as one of its important activities, in the business of (1) purchasing
or carrying Margin Stock, or (2) extending
credit for the purpose of purchasing or carrying Margin Stock, andin
each case of the foregoing clauses (1) and (2) in a manner that violates Regulation U of the Board of Governors of the United
States Federal Reserve System, and (ii) no proceeds of any Borrowings or drawings under any Letters of Credit will be used for any purpose that violates Regulation U of the Board of Governors of the United States Federal Reserve
System.
(b) None
of the Borrower, any Person Controlling the Borrower, or any of its Restricted SubsidiariesNo
Loan Party is or is required to be registered as an “investment company” under the Investment Company Act of
1940.
SECTION 5.14 Disclosure.
To the best of the Borrower’s
knowledge, no report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party (other
than projected financial information, pro forma financial information and information of a general economic or industry nature) to any
Agent or any Lender on or prior to the Closing Date in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document
(as modified or supplemented by other information so furnished), when taken as a whole, contains any untrue statement of a material fact
or omits to state any material fact necessary to make the statements therein (when taken as a whole), in the light of the circumstances
under which they were made, not materially misleading. With respect to projected financial information and pro forma financial information,
the Borrower represents that such information was prepared in good faith based upon assumptions believed to be reasonable at the time
of preparation; it being understood that such projections may vary from actual results and that such variances may be material.
SECTION 5.15 Labor
Matters.
Except as, in the aggregate,
cwould not reasonably
be expected to have a Material Adverse Effect, as of the Closing
Date (a) there are no strikes or other labor disputes against the BorrowerHoldings or any of its Restricted Subsidiaries pending or, to the knowledge of the Borrower, threatened, (b) hours worked by and payment
made to employees of the BorrowerHoldings or any of its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws,
(c) the Borrower and the other Loan Parties have complied with all applicable labor lLaws
including work authorization and immigration and (d) all payments due from the BorrowerHoldings or any of its Restricted Subsidiaries on account of employee wages
and health and welfare and other benefits insurance have been
paid or accrued as a liability on the books of the relevant party.
SECTION 5.16 [Reserved].
SECTION 5.17 Intellectual
Property; Licenses, Etc.
The
BorrowerHoldings and its Restricted Subsidiaries
own, license or possess the right to use all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent
rights, licenses, technology, software, know-how database rights, design rights and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for the operation of their respective businesses as currently conducted,
and, to the knowledge of the Borrower, such IP Rights do not conflict with the rights of any Person, except to the extent such failure
to own, license or possess or such conflicts, either individually or in the aggregate, cwould
not reasonably be expected to have a Material Adverse Effect. TheTo
the knowledge of the Borrower, the business of any Loan Party or any of theirits Subsidiaries as currently conducted does not infringe upon, misappropriate or otherwise violate any IP Rights held by any Person
except for such infringements, misappropriations and violations, individually or in the aggregate, which cwould
not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of
the IP Rights, is filed and presently pending or, to the knowledge
of the Borrower, presently threatened in writing against any Loan Party or any of its Subsidiaries, which, either individually or in
the aggregate, cwould
reasonably be expected to have a Material Adverse Effect.
Except
pursuant to licenses and other user agreements entered into by each Loan Party in
the ordinary course of business, as of the Closing Date, all registrations listed in Schedule
11 to the Perfection Certificate are valid and subsisting, except,
in each case, to the extent failure of such registrations to be valid and subsisting could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 5.18 Solvency.
On the Closing Date, after
giving effect to the Transactions, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
SECTION 5.19 Subordination
of Junior Financing; First Lien Obligations.
The Obligations are “Senior
Debt,” “Senior Indebtedness,” “Guarantor Senior Debt” or “Senior Secured Financing” (or any
comparable term) under, and as defined in, any Junior Financing Documentation.
SECTION 5.20 OFAC;
USA PATRIOT Act; FCPA.
(a) To
the extent applicable, each of Holdings, the Borrower and its Subsidiaries is in compliance, in all material respects, with (i) the
Trading with the Enemy Act, as amended, the International Emergency Economic Powers Act, as amended, and each of the foreign assets control
regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V, as amended) and any other enabling legislation or
executive order relating thereto and (ii) the USA PATRIOT Act.
(b) Neither
the BorrowerHoldings nor any of its Subsidiaries nor, to the knowledge of the BorrowerHoldings and the other Loan Parties, any director, officer, employee, agent or cControlled
aAffiliate of the
BorrowerHoldings or any of its Subsidiaries is currently
the subjecttarget
of any Sanctions, nor is the BorrowerHoldings or any of its Subsidiaries located, organized or resident in any Sanctioned
cCountry
or territory that is the subject of,
except to the extent authorized under applicable Sanctions laws.
(c) No
part of the proceeds of the Loans will be used, directly or knowingly indirectly,
by the Borrower (i) in violation of the United States Foreign Corrupt Practices Act of 1977 or
the UK Bribery Act 2010, as amended, or (ii) for the
purpose of financing any activities or business of or with any Person that, at the time of such financing, is the subjecttarget of any Sanctions or in any Sanctioned Country, in each case except
to the extent authorized under applicable Sanctions laws.
SECTION 5.21 Security
Documents.
(a) Valid
Liens. Each Collateral Document delivered pursuant to Section 4.01 and Sections 6.11,
and 6.13 and
6.16 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent for the benefit
of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral described therein to the extent
intended to be created thereby, and (i) when financing statements and other filings in appropriate form are filed in the offices
specified on Schedule 6 to the Perfection Certificate and (ii) upon the taking of possession or control by the Collateral
Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or
control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the Security
Agreement), the Liens created by the Collateral Documents (other than the Mortgages) shall constitute fully perfected Liens on, and security
interests in (to the extent intended to be created thereby), all right, title and interest of the grantors in such Collateral to the
extent perfection can be obtained by filing financing statements or the taking of possession or control, in each case subject to no Liens
other than Liens permitted by Section 7.01.
(b) PTO
Filing; Copyright Office Filing. When the Intellectual Property Security Agreements are properly filed in the United States Patent
and Trademark Office and the United States Copyright Office, as applicable,
to the extent such filings may perfect such interests, the Liens created by the Security Agreement shall constitute fully perfected
Liens on, and security interests in, all right, title and interest of the grantors thereunder in Patents and Trademarks (each as defined
in the Security Agreement) issued by or registered or applied for
with the United States Patent and Trademark Office, as applicable,
and Copyrights (as defined in the Security Agreement) or exclusive licenses
to Copyrights registered or applied for with the United States Copyright Office,
as the case may be, in each case subject to no Liens other than Liens permitted hereunder (it being understood that subsequent recordings
in the United States Patent and Trademark Office and the United States Copyright Office,
as applicable, may be necessary to perfect the Collateral Agent’s Lien on United
States issued, registered or applied-for (as applicable) Patents,
Trademarks and, Copyrights
and exclusive licenses to United States registered Copyrights acquired by the grantors thereof
after the Closing Date).
(c) Mortgages.
Upon recording thereof in the appropriate recording office, each Mortgage is effective to create, in favor of the Collateral Agent, for
its benefit and the benefit of the Secured Parties, legal, valid and enforceable perfected Liens on, and security interest in, all of
the Loan Parties’ right, title and interest in and to the Mortgaged Propertiesy
thereunder and the proceeds thereof, subject only to Liens permitted by Section 7.01 and when the Mortgages are filed
in the offices specified on Schedule 6 to the Perfection Certificate
dated the Closing Datefiling offices in the jurisdictions
in which the Mortgaged Properties are located (or, in the case of any Mortgage executed and delivered after the date thereof in
accordance with the provisions of Sections 6.11, and
6.13 and 6.16, when such Mortgage is filed in the offices specified in
the local counsel opinion delivered with respect thereto in accordance with the provisions of Sections 6.11,
and 6.13 and
6.16), the), such Mortgages
shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties
in the Mortgaged Propertiesy
thereunder and the proceeds thereof, in each case prior and superior in right to any other Person, other than Liens permitted
by hereunder.
Notwithstanding anything herein
(including this Section 5.21) or in any other Loan Document to the contrary, neither the Borrower nor any other Loan Party
makes any representation or warranty as to (A) the effects of perfection or non-perfection, the priority or the enforceability of
any pledge of or security interest in any Equity Interests of any Foreign Subsidiary, or as to the rights and remedies of the Agents
or any Lender with respect thereto, under foreign Law or (B) the pledge or creation of any security interest, or the effects of
perfection or non-perfection, the priority or the enforceability of any pledge of or security interest to the extent such pledge, security
interest, perfection or priority is not required pursuant to the Collateral and Guarantee Requirement.
ARTICLE VI
Affirmative Covenants
So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation (other than obligations under Treasury Services Agreements or obligations
under Secured Hedge Agreements) hereunder which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized or a backstop letter
of credit reasonably satisfactory to the applicable L/C Issuer is in place), then from and after the Closing Date, the
BorrowerHoldings shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each of its Restricted Subsidiaries to:
SECTION 6.01 Financial
Statements.
(a) Deliver
to the Administrative Agent for prompt further distribution to each Lender, within one hundred twenty (120) days after the end of the
fiscal year ending December 31, 2014 and within ninety (90) days after the end of each subsequent fiscal year, a consolidated balance
sheet of the BorrowerHoldings and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’
equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of Deloitte LLP or any
other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification,
exception or explanatory paragraph or any qualification or exception as to the scope of such audit other
than any “going concern” or like qualification, exception or explanatory paragraph that is expressly resulting solely from
an upcoming maturity date under the Facilities occurring within one year from the time such opinion is delivered or, solely(provided
that, for the avoidance of doubt, an explanatory or emphasis of matter paragraph does not constitute a qualification or exception and
such opinion may contain qualifications and exceptions in respect of or resulting from (w) activities, operations, financial results
or liabilities of any Unrestricted Subsidiary, (x) the impending maturity of any Indebtedness, (y) with respect to the Term
Loans or any other Indebtedness not containing a financial maintenance covenant, any actual or prospective default under, or potential
inability to satisfy, any financial covenant and (z) with respect to the Revolving Credit Facility,
a or any other agreement containing a financial maintenance
covenant, any prospective default under Section 7.11or
any potential inability to satisfy, any financial covenant);
(b) Deliver
to the Administrative Agent for prompt further distribution to each Lender, within forty-five (45) days (or seventy-five (75) days in
the case of the fiscal quarters ending on September 30, 2014, March 31, 2015 and June 30, 2015) after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower, aHoldings,
an unaudited consolidated balance sheet of the BorrowerHoldings and its Subsidiaries as at the end of such fiscal quarter and the related unaudited
consolidated statements of income or operations for such fiscal quarter and the portion of the fiscal year then ended, setting
forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion
of the previous fiscal year, and statements of stockholders’ equity for the current fiscal quarter and consolidated statement of
cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the
BorrowerHoldings as fairly presenting in all material
respects the financial condition, results of operations, stockholders’ equity and cash flows of the
BorrowerHoldings and its Subsidiaries in accordance
with GAAP in all material respects, subject only to normal year-end
audit adjustments and the absence of footnotes;
(c) [reserved];
and
(d) Deliver
to the Administrative Agent with each set of consolidated financial statements referred to in Sections 6.01(a) and 6.01(b) above,
supplemental financial information necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial
statements.
Notwithstanding the foregoing,
(x) the obligations in paragraphs (a) and (b) of this
Section 6.01 may be satisfied with respect to financial information of the BorrowerHoldings and the Subsidiaries by furnishing (A) the applicable financial statements of the BorrowerHoldings (or any direct or indirect parent of the BorrowerHoldings)
or (B) the Borrower’sHoldings’ (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided
that with respect to clauses (A) and (B), (i) to the extent such information relates to a parent of the
BorrowerHoldings, such information is accompanied
by consolidating information that explains in reasonable detail the differences (in
Holdings’ sole discretion) between the information relating to the BorrowerHoldings (or such parent), on the one hand, and the information relating to the BorrowerHoldings and the Subsidiaries on a stand-alone basis, on the other hand and (ii) to the extent such information is in lieu of information
required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of Deloitte LLP or
any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared
in accordance with generally accepted auditing standards and, except as permitted in Section 6.01(a), shall not be subject
to any “going concern” or like qualification, exception or explanatory paragraph or any qualification or exception as to
the scope of such audit. and
(y) the financial information of Holdings and the Subsidiaries required to be delivered pursuant to paragraphs (a) and (b) of
this Section 6.01 may be furnished at any time on or prior to the date applicable to Holdings (or any direct or indirect parent
thereof) pursuant to the SEC’s rules and regulations under the Exchange Act to the extent such date applicable to Holdings
(or any direct or indirect parent thereof) is later than the date set forth in paragraphs (a) and (b) of this Section 6.01
(and the deadline for such delivery shall be deemed to be extended pursuant hereto.
Documents required to be delivered
pursuant to Section 6.01 and Sections 6.02(b) and (c) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the BorrowerHoldings (or any direct or indirect parent of the Borrower) posts such documents, or provides a link thereto on the website on the Internet
at the Borrower’sHoldings’ website address listed on Schedule 6.01; or (ii) on which such documents are posted on the
Borrower’sHoldings’ behalf on IntraLinks/IntraAgency
or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative
Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender
until a written request to cease delivering paper copies is given by the Administrative Agent; and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for
timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents.
SECTION 6.02
Certificates; Other Information.
Deliver to the Administrative
Agent for prompt further distribution to each Lender:
(a) no
later than five (5) days after the earlier of (i) the actual delivery of the financial statements referred to in Sections
6.01(a) and (b) and (ii) the date such financial statements are required to be delivered pursuant to Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the
BorrowerHoldings;
(b) promptly
after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements which
Holdings, the Borrower or any Restricted Subsidiary files with the SEC or with any Governmental Authority that may be substituted therefor
(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 and
other than any filing filed confidentiality with the SEC or any analogous Governmental Authority in any relevant jurisdiction)
and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto; provided
that notwithstanding the foregoing, the obligations in this Section 6.02(b) may be satisfied so long as such information is
publicly available on the SEC’s EDGAR website;
(c) promptly
after the furnishing thereof, copies of any material requests or material notices received by any Loan Party (other than in the ordinary
course of business) or material statements or material reports furnished to any holder of public
debt securities (other than in connection with any board observer rights) of any Loan Party or of any of its Restricted Subsidiaries
pursuant to the terms of the ABL Credit Agreement, any Senior Notes Documents or any
Junior Financing Documentation with a principal amount in excess of the Threshold Amount and, in each case, any Permitted Refinancing
thereof, and not otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.02;
(d) together
with the delivery of each Compliance Certificate pursuant to Section 6.02(a), (i) in the case of annual Compliance Certificates
only, a report setting forth the information required by sections describing the legal name and the jurisdiction of formation of each
Loan Party and the location of the chief executive office of each Loan Party of the Perfection Certificate or confirming that there has
been no change in such information since the later of the Closing Date or the date of the last such report, (ii) a description of
each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment
under Section 2.05(b) and (iii) a list of each Subsidiary of the BorrowerHoldings that identifies each Subsidiary as a Restricted Subsidiary, an Unrestricted Subsidiary or an Excluded Subsidiary as of the date
of delivery of such Compliance Certificate or confirmation that there has been no change in such information since the later of the Closing
Date or the date of the last such list; and
(e) promptly,
such additional information regarding the business, legal, financial or corporate affairs of the Loan Parties or any of their respective
Restricted Subsidiaries, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender through the Administrative
Agent may from time to time reasonably request.;
provided that notwithstanding anything to the contrary in this Section 6.02(e), none of Holdings nor any Restricted Subsidiary shall
be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information
or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect
of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law
or binding agreement (or would otherwise cause a breach or default thereunder) (solely to the extent not entered into in contemplation
thereof) or (iii) is subject to attorney-client or similar privilege or constitutes attorney work product.
The Borrower hereby acknowledges
that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders and the L/C Issuers materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with
respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees to make all Borrower
Materials that the Borrower intends to be made available to Public Lenders clearly and conspicuously designated as “PUBLIC.”
By designating Borrower Materials as “PUBLIC,” the Borrower authorizes such Borrower Materials to be made available to a
portion of the Platform designated “Public Investor,” which is intended to contain only information that is either publicly
available or not material information (though it may be sensitive and proprietary) with respect to the Borrower or its securities for
purposes of United States federal and state securities laws. Notwithstanding the foregoing, the Borrower shall not be under any obligation
to mark any Borrower Materials “PUBLIC.” The Borrower agrees that (i) any Loan Documents, (ii) any financial statements
delivered pursuant to Section 6.01 and (iii) any Compliance Certificates delivered pursuant to Section 6.02(a) and
(iv) notices delivered pursuant to Section 6.03(a) will be deemed to be “public-side” Borrower Materials
and may be made available to Public Lenders.
Each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information”
or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws,
to make reference to communications that are not made available through the “Public Side Information” portion of the Platform
and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal
or state securities laws.
SECTION 6.03
Notices.
Promptly after a Responsible
Officer of the Borrower or any Subsidiary Guarantor has obtained knowledge thereof,
notify the Administrative Agent for prompt further distribution to each
Lender:
(a) of
the occurrence of any Default or Event of Default;
(b) of
any matterlitigation
that has resulted or would reasonably be expected to result in a Material Adverse Effect; and
(c) of
the filing or commencement of any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority,
(i) against Holdings, the Borrower or any of its Subsidiaries thereof that would reasonably be expected to result in a Material
Adverse Effect or (ii) with respect to any Loan Document affecting
the rights and obligations of the Borrower or any other Loan Party.
Each notice pursuant to this
Section 6.03 shall be accompanied by a written statement of a Responsible Officer of the Borrower (x) that such notice
is being delivered pursuant to Sections 6.03(a), (b) or (c) (as applicable) and (y) setting forth
details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
SECTION 6.04
Payment of Obligations.
Pay, discharge or otherwise
satisfy as the same shall become due and payable in the normal conduct of its business, all of
its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property,
except, in each case, (i) to the extent any such Tax is being contested in good faith and by appropriate proceedings for which appropriate
reserves have been established in accordance with GAAP or (ii) if such failure to pay or discharge such obligations and liabilities
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 6.05
Preservation of Existence, Etc.
(a) Preserve,
renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization or
incorporation except (x) in a transaction permitted by Sections 7.04 or 7.05 and (y) any Restricted Subsidiary
may merge or consolidate with any other Restricted Subsidiary and (b) take all reasonable action to maintain all rights, privileges
(including its good standing where applicable in the relevant jurisdiction), permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except, in the case of clause (a) (other
than with respect to the Borrower) or (b), (i) to the extent that failure to do so would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or (ii) pursuant to a transaction permitted by Article VII or clause
(a)(y) of this Section 6.05.
SECTION 6.06
Maintenance of Properties.
Except if the failure to do
so cwould not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect, maintain, preserve and protect all of its material
tangible or intangible properties and equipment necessary in the operation of its business in good working order, repair and condition,
ordinary wear and tear excepted and fire, casualty or condemnation excepted,
and expiration of IP Rights in accordance with their maximum statutory term excepted.
SECTION 6.07
Maintenance of Insurance.
(a) Generally.
Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts
(after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses
as the BorrowerHoldings and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons.
(b) Requirements
of Insurance. All such insurance shall (i) provide (to the extent
customary and reasonably available with respect to such policy and/or the carrier thereof), that no cancellation, material reduction
in amount or material change in coverage thereof shall be effective until at least 10 days (or, to the extent reasonably available, 30
days) after receipt by the Collateral Agent of written notice thereof (the Borrower shall deliver a copy of the policy (and to the extent
any such policy is cancelled or renewed, a renewal or replacement policy) or other evidence thereof to the Administrative Agent and the
Collateral Agent, or insurance certificate with respect thereto) and (ii) name the Collateral Agent as loss payee (in the case of
property insurance) or additional insured on behalf of the Secured Parties (in the case of liability insurance) (it being understood
that, absent an Event of Default, any proceeds of any such property insurance shall be delivered by the insurer(s) to the
BorrowerHoldings or one of its Subsidiaries and applied
in accordance with this Agreement), as applicable.
(c) Flood
Insurance. If any portion of any improved Mortgaged Property
is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood
hazard area with respect to which flood insurance has been made available under the National Flood
Insurance Act of 1968 (as now or hereafter in effect or successor act thereto)Laws,
then the Borrower shall, or shall cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and
reputable insurer, flood insurance in an amount and otherwiseon
such terms sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws
and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative
Agent, Following the Closing Date, the Borrower shall deliver to the Administrative Agent annual renewals of such flood insurance. In
connection with any amendment to this Agreement pursuant to which any increase, extension, or renewal of Loans is contemplated, the Borrower
shall cause to be delivered to the Administrative Agent and the Lenders
for any Mortgaged Property, a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard
Determination, duly executed and acknowledged by the appropriate Loan Parties, and evidence of flood insurance, as applicable.
SECTION 6.08
Compliance with Laws.
Comply with,
the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except
if the failure to comply therewith cwould
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 6.09
Books and Records.
Maintain proper books of record
and accounts, in which entries that are full, true and correct in
all material respects and are in conformity with GAAP consistently applied and which reflect all material financial transactions and
matters involving the assets and business of the BorrowerHoldings
or a Restricted Subsidiary, as the case may be (it being understood and agreed that certain Foreign Subsidiaries maintain individual
books and records in conformity with generally accepted accounting principles in their respective countries of organization and that
such maintenance shall not constitute a breach of the representations, warranties or covenants hereunder).
SECTION 6.10
Inspection Rights.
Permit representatives and
independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants (subject to such accountants’ customary policies and procedures), all
at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrower; provided that, excluding any such visits and inspections during the continuation
of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the
Lenders under this Section 6.10 and the Administrative Agent shall not exercise such rights more often than two times during
any calendar year and only one (1) such time shall be at the Borrower’s expense; provided, further, that when
an Event of Default exists, the Administrative Agent or any Lender (or any of their respective 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.
The Administrative Agent and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s
independent public accountants. Notwithstanding anything to the contrary in this Section 6.10, none of the
BorrowerHoldings nor any Restricted Subsidiary shall
be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information
or other matter that (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect
of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law
or any binding agreement (or would otherwise cause a breach or default thereunder)
(solely to the extent not entered into in contemplation thereof) or (iii) is subject to attorney-client or similar privilege
or constitutes attorney work-product.
SECTION 6.11
Additional Collateral; Additional Guarantors.
At the Borrower’s expense,
take all action either necessary or as reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral
and Guarantee Requirement continues to be satisfied, including:
(a) Upon
(x) the formation or acquisition of any new direct or indirect wholly owned Domestic Subsidiary (in each case, other than an Excluded
Subsidiary) by the Borrower (including, without limitation, upon the formation
of any Subsidiary that is a Delaware Divided LLC and is not otherwise an Excluded Subsidiary), (y) any Excluded Subsidiary
ceasing to constitute an Excluded Subsidiary or (z) the designation in accordance with Section 6.14 of an existing direct
or indirect wholly owned Domestic Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary:
(i) within
sixty (60) days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree
in writing in its discretion, notify the Administrative Agent thereof and:
(A) cause
each such Domestic Subsidiary to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) joinders
to this Agreement as Guarantors, Security Agreement Supplements, Intellectual Property Security Agreements, Mortgages, a counterpart
of the Intercompany Note, each Intercreditor Agreement, if applicable, and other security agreements and documents (including, with respect
to such Mortgages, the documents listed in (f) of the “Collateral and Guarantee Requirement”,
it being understood, however, that any Mortgages and related deliverables shall be governed by the timeframe in Section 6.11(b)),
as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent (consistent with the, Security
Agreement and other security agreements in effect on the Closing Date and the Mortgages delivered pursuant to
Section 6.16hereto), in each case granting Liens
required by the Collateral and Guarantee Requirement;
(B) cause
each such Domestic Subsidiary (and the parent of each such Domestic Subsidiary that is a Guarantor) to deliver any and all certificates
representing Equity Interests (to the extent certificated) and intercompany notes (to the extent certificated) that are required to be
pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated stock powers or other appropriate instruments of
transfer executed in blank;
(Cii) within
ninety (90) days after such formation, acquisition, cessation or designation, or
such longer period as the Administrative Agent may agree in writing in its discretion,
take and cause such Domestic Subsidiary and each direct or indirect parent of such Domestic Subsidiary to take whatever action
(including the recording of Mortgages, the filing of Uniform Commercial Code financing statements and iIntellectual
pProperty sSecurity
aAgreements, and
delivery of stock and membership interest certificates) as may be necessary in the reasonable opinion of the Collateral Agent to vest
in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected Liens to the extent required
by the Collateral and Guarantee Requirement, and to otherwise comply with the requirements of the Collateral and Guarantee Requirement
(it being understood, however, that any Mortgages and related deliverables
shall be governed by the timeframe in Section 6.11(b));
(ii) if
reasonably requested by the Administrative Agent or the Collateral Agent, within sixty (60) days after such request (or such longer period as the Administrative Agent may agree
in writing in its discretion), deliver to the Administrative Agent a signed copy of an opinion, addressed
to the Administrative Agent and the Lenders, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to
such matters set forth in this Section 6.11(a) as the Administrative Agent may reasonably request;
(iii) as
promptly as practicable after the request therefor by the Administrative Agent or Collateral Agent, deliver to the Collateral Agent with
respect to each Material Real Property, any existing title reports, abstracts, surveys or environmental assessment reports, to the extent
available and in the possession or control of the Loan Parties or their respective
Subsidiaries; provided, however, that there shall be no obligation to deliver to the Administrative Agent any existing
environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Loan
Parties or one of their respective Subsidiaries, where, despite the commercially reasonable efforts of the Loan Parties or their respective
Subsidiaries to obtain such consent, such consent cannot be obtained; and
(iv) if
reasonably requested by the Administrative Agent or the Collateral Agent, within sixty (60) days after such request (or such longer period
as the Administrative Agent may agree in writing in its discretion), deliver to the Collateral Agent any other items necessary from time
to time to satisfy the Collateral and Guarantee Requirement with respect to perfection and existence of security interests with respect
to property of any Guarantor acquired after the Closing Date and subject to the Collateral and Guarantee Requirement, but not specifically
covered by the preceding clauses (i), (ii) or (iii) or clause (b) below.
(b) Not
later than ninety (90forty-five
(45) days (or such longer period as the Administrative Agent may
agree in writing in its discretion) after the later of (x) confirmation
from the Lenders that flood due diligence and flood insurance compliance as required by Section 6.07 hereto has been completed and
(y) forty-five (45) days after the acquisition by any Loan Party (including,
without limitation, any acquisition pursuant to a Delaware LLC Division) of any Material Real Property as determined by the Borrower
(acting reasonably and in good faith) (or such longer
period as the Administrative Agent may agree in writing in its discretion) that is required
to be provided as Collateral pursuant to the Collateral and Guarantee Requirement, which property would
not be automatically subject to another Lien pursuant to pre-existing Collateral Documents, cause such property to be
subject to a Lien and Mortgage in favor of the Collateral Agent for the benefit of the Secured Parties and take, or cause the relevant
Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record
such Lien, in each case to the extent required by, and subject to the limitations and exceptions of, the Collateral and Guarantee Requirement
and to otherwise comply with the requirements of the Collateral and Guarantee Requirement.
SECTION 6.12
Compliance with Environmental Laws.
Except, in each case, to the
extent that the failure to do so cwould
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, comply, and take all commercially reasonable
actions to cause all lessees and other Persons operating or occupying its properties to comply with all applicable Environmental Laws
and Environmental Permits; obtain, maintain and renew all Environmental Permits necessary for its operations and properties; and, in
each case to the extent the Loan Parties or Subsidiaries are required by Environmental Laws, conduct any investigation, remedial or other
corrective action necessary to address Hazardous Materials at any property or facility in accordance with applicable Environmental Laws.
SECTION 6.13
Further Assurances.
Promptly upon reasonable request
by the Administrative Agent (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing
or recordation of any Intercreditor Agreement or 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, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order
to carry out more effectively the purposes of any Intercreditor Agreement or the Collateral Documents, to the extent required pursuant
to the Collateral and Guarantee Requirement. If the
Administrative Agent or the Collateral Agent reasonably determines that it is required by applicable
Law to have appraisals prepared in respect of the Real Property of any Loan Party subject to a Mortgage constituting Collateral, the
Borrower shall provide to the Administrative Agent appraisals that satisfy the applicable requirements of FIRREA.
SECTION 6.14
Designation of Subsidiaries.
The
BorrowerHoldings may at any time designate any Restricted
Subsidiary of the BorrowerHoldings
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) immediately before
and after such designation, no Default shall have occurred and be continuing, (ii) immediately after giving effect
to such designation, the Borrower shall be in compliance, on a Pro Forma Basis, with the
covenant set forth in Section 7.11 (it being understood that if no Test Period cited in Section 7.11
has passed, the covenant in Section 7.11 for the first Test Period cited in such Section shall be satisfied as of the last
four quarters ended) if then in effect, and, as a condition precedent to the effectiveness of any such designation, the Borrower
shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance,
no Event of Default under Sections 8.01(a) or,
solely with respect to the Borrower, 8.01(f) shall have
occurred and be continuing and (iii) no Subsidiary may be designated as
an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of any Senior
Notes Documents, the ABL Credit Agreement or any Junior Financing, as applicable, and
(iv) no Restricted Subsidiary may be designated an Unrestricted Subsidiary if it was previously with
an aggregate outstanding principal amount in excess of the Threshold
Amount at the time of such designatedion
an Unrestricted Subsidiary. The designation of any Subsidiary as an Unrestricted
Subsidiary after the Closing Date shall constitute an Investment by the BorrowerHoldings therein at the date of designation in an amount equal to the fair market value of the Borrower’sHoldings’ or its Subsidiary’s (as applicable) Investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary
shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary
existing at such time and (ii) a return on any Investment by the BorrowerHoldings in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such
designation of the Borrower’sHoldings’ or its Subsidiary’s (as applicable) Investment in such Subsidiary.
Notwithstanding
the foregoing, no Loan Party may be designated as an Unrestricted Subsidiary if, on the date of and after giving effect to such designation,
such Unrestricted Subsidiary (or any Subsidiary thereof) would own any Material Intellectual Property (and no Material Intellectual Property
may be transferred to an existing Unrestricted Subsidiary).
SECTION 6.15
Maintenance of Ratings.
In respect of the Borrower,
use commercially reasonable efforts to (i) cause each Facilitythe
Term Loans to be continuously rated (but not any specific rating) by S&P and Moody’s and (ii) maintain a public
corporate rating (but not any specific rating) from S&P and a public corporate family rating (but not any specific rating) from Moody’s.
SECTION 6.16
Post-Closing Covenants[Reserved].
SECTION 6.17
Transactions with Affiliates.
Holdings
shall not, nor shall Holdings permit any of the Restricted Subsidiaries
to, directly or indirectly, enter into any transaction of any kind with any Affiliate of the Borrower, outside
of the ordinary course of business, involving
aggregate payments or consideration in excess of the greater of (x) $75,000,000 and (y) 10% of LTM Consolidated EBITDA, other
than (a) loans and other transactions among Holdings and/or
the Restricted Subsidiaries or any entity that becomes a Restricted
Subsidiary as a result of such loan or other transaction to the extent permitted under Article VII, (b) on terms (when
taken as a whole) that are not materially less favorable to Holdings or
such Restricted Subsidiary as would be obtainable by Holdings or
such Restricted Subsidiary at the time in a comparable arm’s-length
transaction with a Person other than an Affiliate or, if in the good-faith
judgment of Holdings, no comparable transaction is available with which to compare such transaction, such transaction is otherwise fair
to Holdings or such Restricted Subsidiary from a financial point of view and when such transaction is taken in its entirety, (c) the
Transactions and the payment of Transaction Expenses as part of or in connection with the Transactions, (d) the
payment of management, monitoring, consulting, transaction, termination
and advisory fees in an aggregate amount pursuant to the Investor Management Agreement and related indemnities and reasonable expenses,
(e) Restricted Payments permitted under Section 7.06, Investments
permitted under Section 7.02 and prepayments redemptions, purchases, defeasances and other payments permitted by Section 7.10,
(f) employment and severance arrangements between Holdings and
the Restricted Subsidiaries and their respective officers and employees
in the ordinary course of business or consistent with past practice
and transactions pursuant to equity-based plans and employee benefit
plans and arrangements in the ordinary course of business or consistent
with past practice, (g) the payment of customary fees and reasonable
out-of-pocket costs
to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of Holdings
and the Restricted Subsidiaries (or any other direct or indirect
parent of Holdings)
in the ordinary course of business to the extent attributable to the ownership or operation of Holdings
and the Restricted Subsidiaries, (h) transactions pursuant
to agreements in existence on the Closing Date and set forth on Schedule 7.08 or any amendment thereto to the extent such an amendment
is not materially adverse
to the Lenders in any material respect, (i) (x) [reserved],
(y) the payment of indemnification and other similar amounts to the Investors and reimbursement of expenses of the Investors and
(z) customary payments by Holdings and any of its Restricted
Subsidiaries to the Investors made for any financial advisory, financing, underwriting or placement services or in respect of other investment
banking activities (including in connection with acquisitions or divestitures), which payments are approved by a majority of the members
of the board of directors or managers or a majority of the disinterested members of the board of directors or managers of Holdings,
in good faith, (j) payments by Holdings or
any of its Subsidiaries pursuant to any tax sharing agreements with any direct or indirect parent of Holdings
to the extent attributable to the ownership or operation of Holdings
and its Subsidiaries, but only to the extent permitted by Section 7.06(i)(iii),
(k) the issuance or transfer of Equity Interests (other than Disqualified Equity Interests) to any Permitted Holder or to any former,
present or
future director, manager, officer, employee or consultant (or any Affiliate or
any Immediate Family Member of any of the foregoing) of Holdings,
any of its Subsidiaries or any direct or indirect parent thereof, (l) sales
of accounts receivable, or participations therein, or Securitization Assets or related assets in connection with any Qualified Securitization
Facility, factoring arrangements or similar transactions, (m) Permitted Intercompany Activities, (n) a
joint venture which would constitute a transaction with an Affiliate solely as a result of Holdings
or any Restricted Subsidiary owning an equity interest or otherwise
Controlling such
joint venture or similar entity, (o) transactions with any Affiliated
Lender in its capacity as a Lender party to any Loan Document or party to any agreement, document or instrument governing or relating
to any Indebtedness permitted to be incurred pursuant to Section 7.03 (including Permitted Refinancings thereof) to the extent such
Affiliated Lender is being treated no more favorably than all other Lenders or lenders thereunder, (p) transactions with wholly
owned Subsidiaries for the purchase or sale of goods, equipment, products, parts and services entered into in the ordinary course of
business in a manner consistent with prudent business practice followed by companies in the industry of Holdings and its Subsidiaries,
(q) transactions with joint ventures and/or Unrestricted Subsidiaries for the purchase or sale of goods, equipment, products, parts
and services entered into in the ordinary course of business and in a manner consistent with past practice or industry norm (with respect
to joint ventures or Unrestricted Subsidiaries, as applicable) followed by companies in the industry of Holdings and its Subsidiaries,
(r) any lease entered into between Holdings or any Restricted Subsidiary, as lessee, and any Affiliate of the Borrower, as lessor,
which is approved by the Borrower in good faith, (s) the existence and performance of agreements and transactions with any Unrestricted
Subsidiary that were entered into prior to the designation of a Restricted Subsidiary as such Unrestricted Subsidiary to the extent that
the transaction was permitted at the time that it was entered into with such Restricted Subsidiary (and not entered into in contemplation
of such designation) and transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any
such Unrestricted Subsidiary as a Restricted Subsidiary (and not entered into in contemplation of such redesignation), (t) pledges
of Equity Interests of Unrestricted Subsidiaries, (u) transactions undertaken in good faith (as certified by a responsible financial
or accounting officer of the Borrower in an certificate of a Responsible Officer) for the purpose of improving the consolidated tax efficiency
of Holdings and the Restricted Subsidiaries and not for the purpose of circumventing any covenant set forth in this Agreement, (v) transactions
undertaken pursuant to a shared services agreement or pursuant to a membership in a purchasing consortium and (w) Permitted Intercompany
Activities.
SECTION 6.18
Use of Proceeds.
The
proceeds of the Revolving Credit Loans on the Closing Date in an
aggregate amount not to exceed $30,000,000 will be used to finance the Transactions and fees and expenses related to the Transactions
and for working capital needs, including working capital purchase price adjustments pursuant to the Purchase Agreement. After the
Closing Date, the proceeds of the Revolving Credit Loans shall be used for working capital, general corporate purposes and any other
purpose not prohibited by this Agreement, including Permitted Acquisitions and other Investments. The Letters of Credit shall be
used solely to support obligations of Holdings and
its Subsidiaries incurred for working capital, general corporate purposes and any other purpose not prohibited by this Agreement The
proceeds of the Initial B-4 Dollar Term Loans shall be applied on the Amendment No. 6 Effective Date to prepay the entire amount
of the Initial B-2 Euro Term Loans (as defined in this Agreement
as of the Amendment No. 6 Effective Date). The proceeds of
the Initial B-5 Dollar
Term Loans shall be applied on the Amendment No. 9 Effective
Date to (i) refinance and replace the entire amount of the
Initial B-3 Dollar Term Loans, (ii) to repay in full all of
the outstanding indebtedness under the ABL Credit Agreement (as defined in this Agreement immediately prior to the Amendment No. 9
Effective Date) and the termination of all commitments thereunder and all security interests and guarantees in connection therewith and
(iii) to pay costs, fees and expenses in connection with the foregoing.
SECTION 6.19
Accounting Changes.
Holdings
shall not make any change in its fiscal year; provided, however,
that Holdings may,
upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative
Agent, in which case, Holdings and
the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary
to reflect such change in fiscal year.
SECTION 6.20
Change in Nature of Business.
Holdings
shall not, nor shall Holdings permit any of the Restricted Subsidiaries
to, directly or indirectly, engage in any material line of business substantially different from those lines of business conducted by
Holdings and
the Restricted Subsidiaries on the Closing Date or any business reasonably related, complementary, synergistic or ancillary thereto or
reasonable extensions thereof.
Except
as otherwise agreed by the Administrative Agent in its sole discretion, the Borrower shall, and shall cause each of the other Loan Parties
to, deliver each of the documents, instruments and agreements and take each of the actions set forth on Schedule
6.16 within the time periods set forth therein (or such longer time periods as determined by the Administrative Agent
in its sole discretion).
ARTICLE VII
Negative Covenants
So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder (other than obligations under Treasury Services Agreements or obligations
under Secured Hedge Agreements) which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized or a backstop letter of
credit reasonably satisfactory to the applicable L/C Issuer is in place), then from and after the Closing Date:
SECTION 7.01
Liens.
Neither Holdings,
the Borrower nor theany
Restricted Subsidiariesy
shall, directly or indirectly, create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues,that secures obligations
constituting Indebtedness for borrowed money whether now owned or hereafter acquired, other than the following:
(a) Liens
pursuant to any Loan Document and Liens securing any Permitted Refinancing
thereof;
(b) Liens
existing on the Closing Date and listed on Schedule 7.01(b) and any modifications, replacements, renewals, refinancings or
extensions thereof; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired
property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.03,
and (B) proceeds and products thereof, and (ii) the replacement, renewal, extension or refinancing of the obligations secured
or benefited by such Liens, to the extent constituting Indebtedness, is permitted by Section 7.03;
(c) Liens
for Taxes, governmental duties, levies, assessments and charges (including
any Lien imposed by the PBGC or similar Liens) that are not overdue for a period of more than thirtysixty
(3060) days
or not yet payable or subject to penalties for nonpayment or that
are being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person to the extent required in accordance with GAAP;
(d) statutory
or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or
other like Liens that secure amounts not overdue for a period of more than forty-fivesixty
(4560) days
or if more than forty-fivesixty
(4560) days
overdue, that are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate
actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent
required in accordance with GAAP (as determined by the Borrower in good
faith);
(e) (i) pledges
or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social
security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification
obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to the Borroweror
self-insurance to Holdings or any of itsthe
Restricted Subsidiaries;
(f) depositsLiens
to secure the performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money),
statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including (i) those
to secure health, safety and environmental obligations and (ii) letters of credit and bank guarantees required or requested by any
Governmental Authority in connection with any contract or Law) and letters
of credit, bank guarantees or bankers acceptances and completion guarantees, in each case, issued or incurred in the ordinary
course of business;
(g) easements,
rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and other minor title defects affecting Real Property,
and any exceptions on the final Mortgage Policies issued in connection with the Mortgaged Properties, that do not in the aggregate materially
interfere with the ordinary conduct of the business of the BorrowerHoldings or any of itsthe Restricted Subsidiaries, taken as a whole;
(h) Liens
(i) securing judgments or
orders for the payment of money not constituting an Event of Default under Section 8.01(h) or
(ii) securing appeal or other surety bonds related to such judgments;
(i) (i) leases,
licenses, subleases or sublicenses granted to others in the ordinary course of business or
consistent with past practice which do not (i) interfere in any material
respect with the business of Holdings and the Borrower
and its Restricted Subsidiaries, taken as a whole orand
(ii) secure any Indebtednessleases,
licenses, subleases or sublicenses constituting a Disposition permitted under Section 7.05;
(j) Liens
(i) in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with
the importation of goods in the ordinary course of business or consistent
with past practice and (ii) Liens on specific items of inventory or other
goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters
of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods in the ordinary course of business;
(k) Liens
(i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching
to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor
of a banking or other financial institution arising as a matter of Law or under customary general terms and conditions encumbering deposits
or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary
in the banking industry or arising pursuant to such banking institution’s general terms and conditions;
(l) Liens
(i) on cash advances or Cash Equivalents in favor of (x) the
seller of any property to be acquired in an Investment permitted pursuant to Sections 7.02(i)this
Agreement and (n) to be applied against the purchase price for such Investment,
or (y) the buyer of any property to be Disposed of
to secure obligations in respect of indemnification, termination fee or similar seller obligations and (ii) consisting of
an agreement to Dispose of any property in a Disposition permitted under Section 7.05,
in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation
of such Lien;
(m) Liens
(i) in favor of the BorrowerHoldings
or a Restricted Subsidiary on assets of a Restricted Subsidiary that is not a Loan Party securing permitted intercompany Indebtedness
and (ii) in favor of the BorrowerHoldings or
any Subsidiary Guarantor;
(n) any
interest or title of a lessor, sublessor, franchisor, licensor or
sublicensor or secured by a lessor’s, sublessor’s, franchisors’,
licensor’s or sublicensor’s interest under leases, subleases, licenses,
or sublicenses entered into by the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries in the ordinary course of business or consistent
with past practice, or with respect to IP Rights that are not material to the conduct of the business of Holdings and the Restricted
Subsidiaries, taken as a whole;
(o) Liens
arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the
BorrowerHoldings or any of itsthe
Restricted Subsidiaries in the ordinary course of business or consistent
with past practice permitted by this Agreement;
(p) Liens
deemed to exist in connection with Investments in repurchase agreements under Section 7.02;
(q) Liens
encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other
brokerage accounts incurred in the ordinary course of business or consistent
with past practice and not for speculative purposes;
(r) Liens
that are contractual rights of set-off or rights of pledge (i) relating to the establishment of depository relations with banks
not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the
BorrowerHoldings or any of itsthe Restricted
Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the
BorrowerHoldings or any of itsthe Restricted
Subsidiaries consistent with past practice or
(iii) relating to purchase orders and other agreements entered into with customers of the
BorrowerHoldings or any of itsthe Restricted
Subsidiaries in the ordinary course of business or consistent with past
practice;
(s) Liens
solely on any cash earnest money deposits made by the BorrowerHoldings or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(t) ground
leases in respect of Real Property on which facilities owned or leased by the BorrowerHoldings or any of itsthe Restricted Subsidiaries are located;
(u) Liens
to secure Indebtedness permitted under Section 7.03(e); provided that (i) such
Liens are created within 365 days of the acquisition, construction, repair, lease or improvement of the
property subject to such Liens, (ii) such Liens do not at any time encumber
property (except for replacements, additions and accessions to such property) other than the property financed by such Indebtedness and
the proceeds and products thereof and customary security deposits and (iii) with
respect to CapitalizedFinancing
Leases, such Liens do not at any time extend to or cover any assets (except for replacements, additions and accessions to such
assets) other than the assets subject to such CapitalizedFinancing
Leases and the proceeds and products thereof and customary security deposits; provided that individual financings of equipment
provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(v) Liens
on property of any Restricted Subsidiary that is not a Loan Party and that doeson
assets which do not constitute Collateral, which Liens secure Indebtedness of Restricted Subsidiaries that are not Loan Parties
permittednot prohibited
under Section 7.03 or other obligations not otherwise prohibited
under this Agreement;
(w) Liens
existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a Restricted
Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), in each case after the
Closing Date (other than Liens on the Equity Interests of any Person that becomes a Restricted Subsidiary); provided that (i) such
Lien was not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien
does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property
subjected to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations
are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood
that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition),
and (iii) the Indebtedness secured thereby is permitted under Section 7.03(g);
(x) (i) zoning,
building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies,
and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the
use of any rReal
pProperty that does
not materially interfere with the ordinary conduct of the business of Holdings
and the Borrower and its Restricted Subsidiaries, taken as a whole;
(y) Liens
arising from precautionary Uniform Commercial Code financing statement or similar filings;
(z) Liens
on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(aa) the
modification, replacement, renewal or extension of any Lien permitted by clauses (u) and (w) of
this Section 7.01; provided that (i) the Lien does not extend to any additional property,
other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien (or
property described in clause (ii) or (iii) to the proviso to Section 7.01(u) or described
in the parenthetical in clause (ii) to the proviso to Section 7.01(w)) and (B) proceeds
and products thereof, and (ii) the renewal, extension or refinancing of the obligations secured or benefited by such Liens
is permitted by Section 7.03 (to the extent constituting Indebtedness);
(bb) (i) Liens
on the Collateral and any Non-U.S. ABL Facility Collateral securing Indebtedness with respect to the
ABL Credit Agreement permitted to be incurred under Section 7.03(a) and
(ii) Liens on the Collateral and any Non-U.S. ABL Facility Collateral securing any Swap Contract or Treasury Services Agreement
incurred with any ABL Lender (or its Affiliates), in each case subject to the ABLwith
respect to property or assets of Holdings or any of the Restricted Subsidiaries securing obligations in respect of Section 7.03(w) ;
provided that an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to each
applicable Intercreditor Agreement then in effect or that will be
in effect at the time of incurrence of such Indebtedness, if applicable;
(cc) Liens
with respect to property or assets of the BorrowerHoldings
or any of its Restricted Subsidiaries securing obligations in an aggregate principal amount outstanding at any time of
incurrence of such Liens not to exceed the greatersum
of (i) the greater of (x) $145,000,000115,000,000
and (iiy) 2.0015%
of Total AssetsLTM Consolidated
EBITDA, in each case determined as of the date of incurrence; and
(ii) the amount of Indebtedness that would be permitted under Section 7.03(m); provided that an Other Debt
Representative acting on behalf of the holders of such Indebtedness shall have become party to each applicable Intercreditor Agreement
then in effect or that will be in effect at the time of incurrence of such Indebtedness, if applicable;
(dd) Liens
to secure Indebtedness (other than in the form of loans that are secured by the Collateral on a pari passu basis with the Obligations)
permitted under Sections 7.03(q) or 7.03(s); provided that the representative of the holders of each
such Indebtedness becomes party to (i) if such Indebtedness is secured by the Collateral on a pari passu basis (but
without regard to the control of remedies) with the Obligations, the Junior Lien Intercreditor Agreement (if any) as a “Senior
Representative” (as defined in the Junior Lien Intercreditor Agreement), the ABL Intercreditor Agreement and the First Lien Intercreditor
Agreement and (ii) if such Indebtedness is secured by the Collateral
on a junior priority basis to the liens securing the Obligations, the Junior Lien Intercreditor Agreement
as a “Junior Lien Representative” (as defined in the Junior Lien Intercreditor Agreement);
(dd) Liens
securing Indebtedness permitted under Sections 7.03(g), 7.03(q) or 7.03(s); provided that
an Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to each applicable Intercreditor
Agreement then in effect or that will be in effect at the time of
incurrence of such Indebtedness, if applicable;
(ee) Liens
on the Collateral securing obligations in respect of Credit Agreement Refinancing Indebtedness constituting Permitted First Priority
Refinancing Debt or Permitted Junior Lien Refinancing Debt (and any Permitted Refinancing of any of the foregoing); provided that
(x) any such Liens securing any Permitted
Refinancing in respect of such Permitted First Priority Refinancing Debt are subject to the First Lienan
Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to each applicable Intercreditor
Agreement and the ABL Intercreditor Agreement and (y) any such Liens securing any Permitted
Refinancing in respect of such Permitted Junior Lien Refinancing Debt are subject to the Junior Lien Intercreditor Agreement;then
in effect or that will be in effect at the time of incurrence of such Indebtedness;
(ff) Liens
on receivables, Securitization Assets and related assets incurred in connection with (i) a Qualified Securitization Facility
or (ii) a factoring arrangement entered into in the ordinary course of business or consistent with past practice or industry
norm;
(ffgg) Liens
on specific items of inventory or other goods and the proceeds thereof securing such 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;
(gghh) Liens
on cash paid as a benefit on the group life insurance policies securing the COLI Loans; and
(hhii) Liens,
including Liens on the Collateral ranking equal in priority with or junior in priority to the
Liens on the Collateral securing the Obligations, securing letters of credit on
cash or Cash Equivalents to secure Indebtedness permitted under Sections
7.03(yf).
or (l), to the extent created in the ordinary course of
business or consistent with past practice;
Notwithstanding the foregoing,
no consensual Liens shall exist on Equity Interests that constitute Collateral other than pursuant to clauses (a), (bb), (cc), (dd) and
(ee) above.
(jj) Liens
securing any Permitted Refinancing directly or indirectly permitted
under Sections 7.03(a)(ii), (b), (g), (m), (q), (s), (t), (v) or (y) that are secured by Liens on the same
assets as the Liens securing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended by such Permitted Refinancing,
plus improvements, accessions, dividends, distributions, proceeds or products thereof and after-acquired property;
(kk) any
encumbrance or restriction (including put and call arrangements) with respect to Equity Interests of any joint venture or similar arrangement
pursuant to any joint venture or similar agreement;
(ll) Liens
on Equity Interests of an Unrestricted Subsidiary that
secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(mm) deposits
of cash with the owner or lessor of premises leased and operated by Holdings or any of its Subsidiaries in
the ordinary course of business of Holdings and such Subsidiary or
consistent with past practice to secure the performance of Holdings’ or such Subsidiary’s obligations under the terms of
the lease for such premises;
(nn) security
given to a public utility or any municipality or governmental authority when required by such utility or authority in connection with
the operations of that Person in the ordinary course of business or consistent with past practice;
(oo) Liens
on any funds or securities held in escrow accounts or similar arrangements established for the purpose of holding proceeds from issuances
of debt securities or incurrences of other Indebtedness by Holdings or any of the Restricted Subsidiaries issued after the Amendment
No. 9 Effective Date, together with any payment of interest or premium or discount on such Indebtedness (or any costs related
to the issuance or incurrence of such Indebtedness) additional funds required in order to fund any mandatory redemption or sinking fund
payment on such debt securities or other Indebtedness;
(pp) Liens
on cash and Cash Equivalents arising in connection with the defeasance, satisfaction, discharge or redemption of Indebtedness, so long
as such defeasance, satisfaction, discharge or redemption is not prohibited by the terms of this Agreement;
(qq) customary
Liens granted in favor of a trustee to secure fees and other amounts owing to such trustee under an indenture or other agreement pursuant
to which Indebtedness not prohibited by this Agreement is incurred; and
(rr) Liens
on vehicles or equipment of Holdings or any of the Restricted Subsidiaries granted in the ordinary course of business or consistent with
past practice or industry norm.
For
purposes of determining compliance with this Section 7.01, (A) Liens need not be incurred solely by
reference to one category of Liens permitted by this Section 7.01 but are permitted to be incurred in part under
any combination thereof and of any other available exemption, (B) in the event that a
Lien (or any portion thereof) meets the criteria of one or more of the categories of Liens permitted by this Section 7.01,
the Borrower may, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with
this provision, (C) in the event that aall
or any portion of Indebtedness or other obligations secured by a Lien could be classified as secured in part pursuant to Section 7.01(dd) above
(giving pPro fForma
eEffect to the incurrence
of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify suchall
or any portion of such Indebtedness (and any obligations in respect thereof) as having been secured pursuant to Section 7.01(dd) above
and thereafter the remainder of the Indebtedness or other obligations as having been secured pursuant to one or more of the other clauses
of this Section 7.01 and if any such test would be satisfied in any subsequent fiscal quarter following the relevant
date of determination, then such reclassification shall be deemed to have automatically occurred at such time and (D) with
respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the incurrence of such Indebtedness,
such Lien shall also be permitted to secure any amount permitted under Section 7.03(zaa)
in respect of such Indebtedness. Any Liens in respect of the accrual of interest, the accretion of accreted value and the payment
of interest in the form of additional Indebtedness, in each case in respect of any Indebtedness, shall not be deemed to be an incurrence
of a Lien in respect of such Indebtedness for purposes of this Section 7.01.
SECTION 7.02 Investments.
Neither Holdings,
the Borrower nor the Restricted Subsidiaries shall directly or indirectly, make any Investments, except:
(a) Investments
by the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries in assets that were Cash Equivalents when such Investment was made;
(b) loans
or advances to future, present or former officers, directors, managers,
members, partners, independent contractors, consultants and employees of any Loan Party (or any direct or indirect parent thereof)
or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes, (ii) in connection with such Person’s purchase of Equity Interests of Holdingsthe
Borrower or any direct or indirect parent thereof directly from such issuing entity (provided that the amount of such loans and
advances shall be contributed to Holdings or the Borrower,
as applicable, in cash as common eEquity
Interests other than Disqualified Equity Interests) and (iii) for
any other purposes not described in the foregoing clauses (i) and (ii); provided that the aggregate principal
amount outstanding at any time under clause (iii) above shall not exceed the
greater of (x) $15,000,00040,000,000
and (y) 5% of LTM Consolidated EBITDA, in each case
determined at the time of such loan or advance;
(c) Investments
by the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries in the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries or any Person that will, upon such Investment become a Restricted Subsidiary; provided
that (x) any Investment made by any Person that is not a Loan Party in any Loan Party pursuant to this
clause (c) shall be subordinated in right of payment to the Loans and (y) any Investment made by any Loan Party
in any Person that is not a Loan Party shall either (i) be made in the
ordinary course of business or (ii) be evidenced by a note pledged as Collateral on a first
priority basis for the benefit of the Obligations, which note shall be in form and substance reasonably satisfactory to the Administrative
Agent (it being understood that an Intercompany Note shall be satisfactory to the Administrative Agent);
(d) Investments
consisting of 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, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account
debtors and other credits to suppliers in the ordinary course of business or
consistent with past practice;
(e) Investments
(excluding loans and advances made in lieu of Restricted Payments pursuant to and limited by Section 7.02(m) below)
consisting of transactions permitted under Sections 7.01 (other than 7.01(p)), 7.03 (other than 7.03(c) and (d)), 7.04 (other
than 7.04(c), (d) and (e)), 7.05 (other than 7.05(e)), 7.06 (other than 7.06(e) and (i)(iv)) and 7.13, respectively;
(f) Investments
(i) existing or contemplated on the Closing Date and, with respect to each such Investments in an amount in excess of $2,500,000,
set forth on Schedule 7.02(f) and any modification, replacement, renewal, reinvestment or extension thereof and (ii) existing
on the Closing Date by the BorrowerHoldings
or any Restricted Subsidiary in the BorrowerHoldings
or any other Restricted Subsidiary and any modification, renewal or extension thereof; provided that the amount of the
original Investment is not increased except by the terms of such Investment as of the Closing Date or as otherwise permitted by this
Section 7.02;
(g) Investments
in Swap Contracts permitted under Section 7.03;
(h) promissory
notes and other non-cash consideration received in connection with Dispositions permitted by Section 7.05Investments
constituting COLI Loans;
(i) any
acquisition of all or substantially all the assets of a Person, or any Equity Interests in a Person that becomes a Restricted Subsidiary
or a division or line of business of a Person (or any subsequent Investment made in a Person, division or line of business previously
acquired in a Permitted Acquisition), in a single transaction or series of related transactions, if immediately after giving effect thereto:
(i) no Event of Default under Sections 8.01(a) or,
solely with respect to the Borrower, 8.01(f) shall have occurred and be continuing, (ii) any
acquired or newly formed Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness otherwise permitted by
Section 7.03 and (iii) to the extent required by the Collateral and Guarantee Requirement, (A) the
property, assets and businesses acquired in such purchase or other acquisition shall constitute Collateral and (B) any such
newly created or acquired Subsidiary (other than an Excluded Subsidiary or an Unrestricted Subsidiary) shall become a Guarantor, in each
case, in accordance with Section 6.11 (any such acquisition, a “Permitted Acquisition”);
(j) so
long as no Event of Default under Sections 8.01(a) or,
solely with respect to the Borrower, 8.01(f) has occurred and is continuing or would result therefrom,
Holdings and the Borrower and its
Restricted Subsidiaries may make Investments in an unlimited amount so long as the Consolidated Total Net Leverage Ratio
calculated on a Pro Forma Basis as of the last day of the most recently
ended period of four consecutive fiscal quarters for which financial statements are internally available is less than or equal
to 5.50 to 1.00;
(k) Investments
in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4
customary trade arrangements with customers consistent with past practices;
(l) Investments
(including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of suppliers and customers
or in settlement of delinquent obligations of, or other disputes with, customers and suppliers arising in the ordinary course of business
or consistent with past practice or upon the foreclosure with respect
to any secured Investment or other transfer of title with respect to any secured Investment;
(m) loans
and advances to the Borrower and any other direct or indirect parent of the Borrower, and not in excess of the amount of (after giving
effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made
to such parent in accordance with Sections 7.06(g), (h) or (i);
(n) other
Investments in an aggregate amount outstanding pursuant to this clause (n) (valued at the time of the making thereof, and
without giving effect to any write-downs or write-offs thereof) at any time not to exceed (x) the greater of (i) $290,000,000300,000,000
and (ii) 4.0040%
of Total AssetsLTM Consolidated
EBITDA measured at the time of such Investment (in each case, net of any return in respect thereof, including dividends, interest,
distributions, returns of principal, profits on sale, repayments, income and similar amounts) plus (y) the portion, if
any, of the Cumulative Credit on such date that the Borrower elects to apply to this clause (y) plus
(z) the Available RP Capacity Amount;
(o) advances
of payroll payments to employees in the ordinary course of business or consistent
with past practice;
(p) Investments
to the extent that payment for such Investments is made solely with Equity Interests (other than Disqualified Equity Interests and the
Equity Contribution) of the Borrower (or any direct or indirect parent of the Borrower);
(q) Investments
of a Restricted Subsidiary acquired after the Closing Date or of a Person merged or amalgamated or consolidated into Holdings
or the Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary in accordance with Section 7.04
after the Closing Date 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 such acquisition, merger or consolidation;
(r) [reserved];the
contribution, assignment, licensing, cross-licensing, sub-licensing, lease, sublease or other Investment of IP Rights or other general
intangibles pursuant to (i) any Intercompany License Agreement and any other Investments made in connection therewith or
(ii) any joint research or development, joint venture, or strategic alliance arrangements with other Persons;
(s) Investments
constituting the non-cash portion of consideration received in a Disposition permitted by Section 7.05;
(t) Guarantees
by the BorrowerHoldings
or any of its Restricted Subsidiaries of leases (other than CapitalizedFinancing
Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business
or consistent with past practice;
(u) Investments
constituting COLI Loans;in
or relating to a Securitization Subsidiary that, in the good faith determination of the Borrower are necessary or advisable to effect
any Qualified Securitization Facility (including any contribution of replacement or substitute assets to such subsidiary) or any repurchase
obligation in connection therewith ;
(v) Investments
in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause
(v) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the
proceeds of such sale do not consist of cash or marketable securities (until such proceeds are converted to Cash Equivalents), not to
exceed the greater of (i) $165,000,000150,000,000
and (ii) 2.2520%
of Total AssetsLTM Consolidated
EBITDA at the time of such Investment (with the fair market value of each Investment being measured at the time made and without
giving effect to subsequent changes in value); provided that any Investment
made by any Loan Party pursuant to this clause (v) shall
be subordinated in right of payment to the Loans;
(w) any
Investment in a Similar Business when taken together with
all other Investments made pursuant to this clause (w) that are at that time outstanding not to exceed the greater of (i) $290,000,000300,000,000
and (ii) 4.0040%
of Total AssetsLTM Consolidated
EBITDA (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value); provided, however, that
if any Investment pursuant to this clause (w) is made in
any Person that is not a Restricted Subsidiary of the Borrower at the date of the making of such Investment
and such Person becomes a Restricted Subsidiary after such date, such investment
shall thereafter be deemed to have been made pursuant to clause (c) above and shall cease
to have been made pursuant to this clause (w);
(x) Investments
constituting Permitted Intercompany Activities;
(y) [reserved];
(z) Investments
in joint ventures of the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries, taken together with all other Investments made pursuant to this clause (z) that are at that
time outstanding, not to exceed the greater of (i) $145,000,000230,000,000
and (ii) 2.0030%
of Total AssetsLTM Consolidated
EBITDA (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured
at the time made and without giving effect to subsequent changes in value).;
(aa) earnest
money deposits required in connection with Permitted Acquisitions or Investments not prohibited hereunder;
(bb) contributions
to a “rabbi” trust for the benefit of employees or other grantor trusts subject to claims of creditors in the case of bankruptcy
of Holdings or the Borrower;
(cc) deposits
in the ordinary course of business or consistent with past practice or industry norm to secure the performance of Non-Financing Lease
Obligations or utility contracts, or in connection with obligations in respect of tenders, statutory obligations, surety, stay and appeal
bonds, bids, licenses, leases, government contracts, trade contracts, performance and return-of-money bonds, completion guarantees and
other similar obligations (exclusive of obligations for the payment of borrowed money) incurred in the ordinary course of business or
consistent with past practice or industry norm;
(dd) Investments
consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with past practice or
industry norm;
(ee) Investments
made in the ordinary course of business in connection with obtaining, maintaining or renewing client and customer contracts and loans
or advances made to, and guarantees with respect to obligations of, distributors, suppliers, licensors and licensees in the ordinary
course of business or consistent with past practice or industry norm;
(ff) non-cash
Investments made in connection with tax planning and reorganization activities;
(gg) (i) Investments
consisting of unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that the same are permitted
to remain unfunded under applicable Law and (ii) Investments of assets relating to any non-qualified deferred payment plan
or similar employee compensation plan in the ordinary course of
business, consistent with past practice or consistent with industry
norm;
(hh) to
the extent constituting an Investment, Investments consisting of escrow deposits to secure indemnification obligations in
connection with (i) a Disposition or (ii) an acquisition of any business, assets or a Subsidiary not prohibited
by this Agreement;
(ii) Guarantee
obligations of Holdings or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made
or incurred for the benefit of Holdings or any Restricted Subsidiary 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;
(jj) Investments
in deposit accounts and securities accounts in the ordinary course of business or consistent with past practice or industry norm; and
(kk) any
Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities
arising in the ordinary course of business or consistent with past practice or industry norm;
(ll) loans
and advances to customers in the ordinary course of business or consistent with past practice or industry norm in respect of the payment
of insurance premiums.
For purposes of determining
compliance with this Section 7.02, in the event that an item of Investment meets the criteria of more than one
of the categories of Investments described above, the Borrower may, in its sole discretion, classify or later divide, classify or reclassify
all or a portion of such item of Investment or any portion thereof in a manner that complies with this Section 7.02
and will only be required to include the amount and type of such Investment in one or more of the above clauses. In the event that all
or a portion of the Investments could be classified as incurred under a “ratio-based” basket (giving pPro
fForma eEffect
to the making of such Investments), the Borrower, in its sole discretion, may classify suchall
or any portion of such Investment as having been incurred pursuant to such “ratio-based” basket and thereafter the
remainder of the Investments as having been incurred pursuant to one or more of the other clauses of this Section 7.02
and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such
reclassification shall be deemed to have automatically occurred at such time. If
any Investment pursuant is made pursuant to clauses (n), (v), (w) or (z) in
any Person that is not Holdings or a Restricted Subsidiary at the
date of making such Investment, and such Person becomes a Restricted
Subsidiary after such date, such Investment shall
thereafter be deemed to have been made pursuant to clause (c) above and shall cease to have been made pursuant to clause
(n),(v), (w) or (z), as applicable.
SECTION 7.03 Indebtedness.
Neither Holdings,
the Borrower nor any of the Restricted Subsidiaries shall directly or indirectly, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness
of any Loan Party under (i) the Loan Documents,
and (ii) the
ABL Credit Agreement in an aggregate principal amount not to exceed $475,000,000, (iii) the Dollar Senior
Notes Documents in an aggregate principal amount not to exceed $1,040,000,000 and (iv) the
Euro Senior Notes Documents in an aggregate principal amount not to exceed €235,000,000500,000,000
and, in the case of clause (ii), (iii) and (iv), any Permitted Refinancing
thereof;
(b) (i) Indebtedness
outstanding on the Closing Date and listed on Schedule 7.03(b) and any Permitted Refinancing thereof and (ii) Indebtedness
owed to the BorrowerHoldings
or any Restricted Subsidiary outstanding on the Closing Date and any refinancing thereof with Indebtedness owed to the
BorrowerHoldings or any Restricted Subsidiary in
a principal amount that does not exceed the principal amount (or accreted value, if applicable) of the intercompany Indebtedness so refinanced;
provided that (x) any Indebtedness advanced by any Person that
is not a Loan Party to any Loan Party pursuant to this clause (b) shall be subordinated in right of payment to the Loans
and (y) any Indebtedness advanced by any Loan Party to any Person that is not a Loan Party shall either (i) be
made in the ordinary course of business or (ii) be evidenced by a note pledged as Collateral on a first priority basis for
the benefit of the Obligations, which note shall be in form and substance reasonably satisfactory to the Administrative Agent (it being
understood that an Intercompany Note shall be satisfactory to the Administrative Agent);
(c) Guarantees
by the BorrowerHoldings
and any Restricted Subsidiary in respect of Indebtedness of the BorrowerHoldings
or any Restricted Subsidiary of the Borrower otherwise permitted hereunder; provided
that (A) no Guarantee (other than Guarantees by a Foreign Subsidiary of Indebtedness of another Foreign Subsidiary)
of any Senior Notes, the ABL Credit Agreement (other than Canadian Subsidiaries which guarantee Indebtedness
under the ABL Credit Agreement) or any Indebtedness constituting Junior Financing with a principal amount in excess
of the Threshold Amount shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Obligations on
the terms set forth herein and (B) if the Indebtedness being Guaranteed is subordinated to the Obligations, such Guarantee
shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination
of such Indebtedness;
(d) Indebtedness
of the BorrowerHoldings
or any Restricted Subsidiary owing to the BorrowerHoldings
or any Restricted Subsidiary (or issued or transferred to any direct or indirect parent of a Loan Party which is substantially
contemporaneously transferred to a Loan Party or any Restricted Subsidiary of a Loan Party) to the extent constituting an Investment
permitted by Section 7.02; provided that all such Indebtedness
advanced by any Loan Party to any Person that is not a Loan Party shall be evidenced by an Intercompany Note and any such Indebtedness
advanced by any Person that is not a Loan Party to any Loan Party shall be subordinated in right of payment to the Loans (for
the avoidance of doubt, any such Indebtedness owing to a Restricted
Subsidiary that is not a Loan Party shall be deemed to be expressly subordinated in right of payment
to the Loans unless the terms of such Indebtedness expressly provide otherwise);
(e) (i) Attributable
IndebtednessFinancing Lease Obligations and other
Indebtedness (including CapitalizedFinancing
Leases) financing an acquisition, construction, repair, replacement, lease,
expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred
by the BorrowerHoldings
or any Restricted Subsidiary prior to or within 365 days after the acquisition, construction,
repair, replacement, lease or improvement of the applicable asset in an aggregate amount not to exceed (A) the
amount of such Indebtedness outstanding on the Amendment No. 9 Effective Date plus (B) the greater of
(i1) $290,000,000230,000,000
and (ii2)
4.0030% of Total
AssetsLTM Consolidated EBITDA, in each case determined
at the time of incurrence at any time outstanding plus (C) additional
amounts (including at any time prior to the utilization of amounts under clause (B) above) so long as the Consolidated First
Lien Net Leverage Ratio (provided that, solely for purposes of calculating
the Consolidated First Lien Net Leverage Ratio in connection with this clause (C), such Indebtedness incurred pursuant to this Section 7.03(e) shall
be deemed to constitute Consolidated First Lien Net Debt), determined on a Pro Forma Basis as of the last day of the most recently ended
period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.75 to 1.00 (together
with any Permitted Refinancings thereof) at any time outstanding, (ii) Attributable
IndebtednessFinancing Lease Obligations arising out
of any Sale and Lease-Back Transaction or leasale-leaseback
transactions permitted by Section 7.05(m) and (iii) any
Permitted Refinancing of any of the foregoing;
(f) Indebtedness
in respect of Swap Contracts designed to hedge against the Borrower’s or any Restricted Subsidiary’s
exposure to interest rates, foreign exchange rates or commodities pricing risksor
other derivatives, in each case, incurred in the ordinary course of business and not for speculative purposes;
(g) Indebtedness
of the BorrowerHoldings
or any Restricted Subsidiary incurred or assumed in connection with any Permitted Acquisition, and
any Permitted Refinancing thereofInvestment or similar transaction
not prohibited hereunder; provided that after giving pPro
fForma eEffect
to such Permitted Acquisition, Investment or similar transaction
and the incurrence or assumption of such Indebtedness, the aggregate principal
amount of such Indebtedness does not exceed (x) the
greater of (1) $100,000,000150,000,000
and (2) 20% of LTM Consolidated EBITDA at any time outstanding,
in each case determined at the time of incurrence, plus (y) any
additional amount of such Indebtedness so long (iA)
if such Indebtedness is secured on a junior basis to the Facilities, (A) the Consolidated
Secured Net Leverage Ratio determined on a Pro Forma Basis for
the Borrower and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements
are available immediately preceding the date on which such Indebtedness is incurred or assumed is no greater than 6.00 to 1.00 or (B) the
Consolidated Secured Net Leverage Ratio determined on a Pro Forma Basis for the Borrower and its Restricted Subsidiaries’ most
recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which such
Indebtedness is incurred or assumed is no greater than the Consolidated Secured Net Leverage Ratio immediately prior to such Permitted
Acquisition and the assumption of such Indebtedness, (ii) if such Indebtedness is secured on a pari passu basis with
the Facilities, (Aby the Collateral on an equal priority
basis with the Liens securing the Obligations (without
giving effect to the control of remedies), either (1) the Consolidated First Lien Net Leverage Ratio determined on
a Pro Forma Basis for the Borrower and its Restricted
Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements
are available immediately preceding the date on which such Indebtedness is incurred or assumed is no greater than 4.75 to 1.00 or (B)would
not exceed the Consolidated First Lien Net Leverage Ratio immediately
prior thereto or (2) on a Pro Forma Basis, Holdings could incur $1.00 of Permitted First Lien Ratio Debt, (B) if
such Indebtedness is secured by the Collateral on a junior lien basis
to the Liens securing the Initial Term Loans, either (1) the Consolidated Secured Net Leverage Ratio determined on
a Pro Forma Basis for the Borrower and its Restricted Subsidiaries’ most recently ended four fiscal
quarters for which internal financial statements are available immediately preceding the
date on which such Indebtedness is incurred or assumed is no greater thanwould
not exceed the Consolidated First LienSecured
Net Leverage Ratio immediately prior to such Permitted Acquisition and the assumption of such
Indebtedness or (iiithereto or (2) on a Pro
Forma Basis, Holdings could incur $1.00 of Permitted Junior Secured Ratio Debt or (C) if such Indebtedness is unsecured,
(A) the or not secured by all or any portion
of the Collateral (and including all such Indebtedness of Restricted Subsidiaries that are not Loan Parties), either (1) either
(I) the Consolidated Interest Coverage Ratio determined on a Pro Forma Basis would be greater than or equal to the Consolidated
Interest Coverage Ratio immediately prior thereto or (II) the Consolidated Total Net Leverage Ratio determined on
a Pro Forma Basis (including a pro forma application of the net proceeds therefrom) for the Borrower
and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available
immediately preceding the date on which such Indebtedness is incurred or assumed would have been no greater than 6.25 to 1.00 or (B) the
Consolidated Total Net Leverage Ratio determined on a Pro Forma Basis (including a pro forma application
of the net proceeds therefrom) for the Borrower and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which
internal financial statements are available immediately preceding the date on which such Indebtedness is incurred or assumed is no greater
thanwould not exceed the Consolidated Total Net Leverage
Ratio immediately prior to suchthereto
or (2) on a Pro Forma Basis, Holdings could incur $1.00 of Permitted Acquisition
and the assumption of such IndebtednessUnsecured Ratio Debt;
provided that any such Indebtedness incurred by a Restricted Subsidiary that
is not a Loan Party, together withif
any Indebtedness incurred by a Restricted Subsidiary that is not a Loan Party pursuant to Sections
7.03(q), 7.03(s), 7.03(u) or 7.03(w), does not exceed in the aggregate at any time outstanding the greater of (i) $165,000,000
and (ii) 2.25% of Total Assets, in each case determined at the time of
incurrence(but not assumed,
unless the Borrower otherwise elects) pursuant to this clause (g) shall be secured by all or a portion of the Collateral,
such Indebtedness shall be subject to each applicable Intercreditor Agreement then in effect or that will be in effect at the time such
Indebtedness is incurred and (ii) any Permitted Refinancing thereof; provided, further,
that any Indebtedness incurred (but not assumed) pursuant to this clause (g) which
is secured shall be subject to the requirements included in the first proviso under the definition of “Permitted
Ratio Debt”;
(h) Indebtedness
representing deferred compensation toor
similar arrangements to any future, present or former employees of,
directors, officers, managers, partners, independent contractors or consultants of Holdings, the Borrower (or any direct or indirect
parent thereof) or any of its Restricted Subsidiaries incurred in the ordinary course of business or
consistent with past practice;
(i) Indebtedness
consisting of promissory notes issued by the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries to currentfuture,
present or former officers, managers, members, independent contractors,
consultants, directors and employees, their respective estates, spouses or former spousesControlled
Investment Affiliates or Immediate Family Members, in each case, to finance the purchase or redemption of Equity Interests of
the Borrower or any direct or indirect parent of the Borrower permitted by Section 7.06;
(j) Indebtedness
incurred by the BorrowerHoldings
or any of its Restricted Subsidiariesy
in a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case, constituting
indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments;
(k) Indebtedness
consisting of obligations of the BorrowerHoldings
or any of its Restricted Subsidiariesy
under deferred compensationpurchase
price, earnouts or other similar arrangements incurred by such Person in connection with Permitted Acquisitions or any other Investment
expressly permitted hereunder;
(l) obligations
in respect of Treasury Services Agreements and other Indebtedness in respect of netting services, automatic clearinghouse arrangements,
overdraft protections and similar arrangements in each case in connection with deposit accounts;
(m) (i) Indebtedness
of the BorrowerHoldings
or any of its Restricted Subsidiariesy,
in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed (x) the
greater of (i1)
$290,000,000300,000,000
and (ii2)
4.0040% of Total
AssetsLTM Consolidated EBITDA at any time outstanding,
in each case determined at the time of incurrence, plus (y) 200% of the cumulative amount of the net cash proceeds
and Cash Equivalent proceeds received from the sale of Equity Interests
(other than Excluded Contributions, proceeds of Disqualified Equity Interests, Designated Equity Contributions
or sales of Equity Interests to the BorrowerHoldings
or any of its Subsidiaries) of the Borrower or any direct or indirect parent of the Borrower after the Closing Date and on or
prior to such time (including upon exercise of warrants or options) which proceeds have been contributed as common equity to the capital
of the BorrowerHoldings
and the aggregate amount of contributions to the common capital (other than from any Subsidiary) of Holdings received after the Closing
Date, in each case, to the extent that has been Not Otherwise Applied,
and (ii) in each case, any Permitted Refinancing thereof;
(n) Indebtedness
consisting of (ai)
the financing of insurance premiums or (bii)
take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or
consistent with past practice;
(o) Indebtedness
incurred by the BorrowerHoldings
or any of its Restricted Subsidiariesy
in respect of letters of credit, bank guarantees, bankers’ acceptances,
warehouse receipts or similar instruments or other discounting or
factoring of receivables, or similar facilities or instruments related thereto issued or created,
or relating to obligations or liabilities incurred, in the ordinary course of business or
consistent with past practice, including in respect of workers’ compensation claims, health, disability or other employee
benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations
regarding workers compensation claims; provided that any reimbursement obligations
in respect thereof are reimbursed within 30 Business Days following the incurrence thereof;
(p) obligations
in respect of self-insurance and obligations in respect of stays, customs,
performance, bid, indemnity, appeal,
judgment and suretyother
similar bonds or instruments and performance,
bankers’ acceptance and completion guarantees and similar obligations provided by the BorrowerHoldings
or any of its Restricted Subsidiariesy
or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary
course of business or consistent with past practice;
(q) Indebtedness
incurred by Holdings or any Restricted Subsidiary (x) and
secured on a pari passu basis with the Facilitiesby
the Collateral on an equal priority basis (without giving effect to the control of remedies) with the Initial Term Loans (“Incremental
Equivalent First Lien Debt”) or (y) and secured by
the Collateral on a junior Llien
basis to the Facilities Liens
securing with the Initial Term Loans and any Permitted Refinancing
thereof (“Incremental Equivalent Junior Lien Debt”), in each case and
any Permitted Refinancing thereof, in an aggregate principal amount under this clause
(q), when aggregated with the amount of Incremental Term Loans and Incremental Revolving Credit
Commitments pursuant to Section 2.14(d)(v)(A) and Incremental Equivalent Unsecured Debt incurred pursuant to
Section 7.03(u), not to exceed the Available
Incremental Base Amount,
so long as no Event of Default under Sections 8.01(a) or, solely with respect to the Borrower, Section 8.01(f) shall
have occurred and be continuing or would exist after giving effect to such Indebtedness;
provided that such Indebtedness shall (A) in the case of clause (xIncremental
Equivalent First Lien Debt (other than revolving indebtedness) above, have a
maturity date that is on or after the Latest Maturity Date at the
time such Indebtedness is incurred, and in the case of clause (y) aboveIncremental
Equivalent Junior Lien Debt, have a maturity date that is at least ninety-one (91) days after the Latest Maturity Date at the
time such Indebtedness is incurred (and in each case subject to the Permitted
Earlier Maturity Indebtedness Exception), (B) in the case of clause (xIncremental
Equivalent First Lien Debt (other than any revolving indebtedness) above, have
a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities and, in
the case of clause (y) aboveIncremental
Equivalent Junior Lien Debt, shall not be subject to scheduled amortization prior to maturity,
(and in
each case subject to the Permitted Earlier Maturity Indebtedness
Exception) and (C) if such Indebtedness is insecurred
or guaranteed on a junior lien basis by a Loan Party with respect to the
Collateral, be subject to the Junior Lieneach
applicable Intercreditor Agreement and, if then
Indebtedness is secured on a pari passu basis with the Facilities, be subject to the First
Lien Intercreditor Agreement and the ABL Intercreditor Agreement and (D) have terms and conditions (other than (x) pricing,
rate floors, discounts, fees, premiums and optional prepayment or redemption provisions and (y) covenants or other provisions
applicable only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness and to the extent any financial
maintenance covenant is added for the benefit of such Incremental Equivalent First Lien Debt or Incremental
Equivalent Junior Lien Debt, to the extent that such financial maintenance covenant is also added for
the benefit of each Facility remaining outstanding after the incurrence or issuance of such Incremental
Equivalent First Lien Debt or Incremental Equivalent Junior Lien Debt, as applicable) that (1) in the good faith determination
of the Borrower are not materially less favorable (when taken as a whole) to the Borrower than the terms and conditions of the Loan Documents
(when taken as a whole) or reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (provided
that a certificate of the Borrower as to the satisfaction of the conditions described in this clause (D) delivered at
least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description
of the material terms and conditions of such Indebtedness or drafts of documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (D), shall be conclusive unless
the Administrative Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination
(including a description of the basis upon which it disagrees)) or (2) are otherwise as
agreed between the Borrower and the lender, holder or other provider of such Indebtedness; provided,
further, that any such Indebtedness incurred by a Restricted Subsidiary that is not a Loan Party, together with any Indebtedness
incurred by a Restricted Subsidiary that is not a Loan Party pursuant to Sections 7.03(g), 7.03(s), 7.03(u) or
7.03(w), does not exceed in the aggregate at any time outstanding, the greater of (i) $165,000,000 and (ii) 2.25%
of Total Assets, in each case determined at the time of incurrence andin
effect or that will be in effect at the time such Indebtedness is incurred and (ii) any Permitted Refinancing thereof;
(r) Indebtedness
supported by a Letter of Credit or a letter of credit under
the ABL Credit Agreement, in a principal amount not to exceed the face amount of such Letter
of Credit or letter of credit;
(s) Permitted
Ratio Debt and any Permitted Refinancing thereof;
(t) Credit
Agreement Refinancing Indebtedness;
(u) (i) unsecured
(or not secured by all or any portion of the Collateral) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal
amount under this clause (u), and when aggregated with the amount of Incremental Term Loans and Incremental Revolving Credit Commitments
pursuant to Section 2.14(d)(v)(A) and Incremental Equivalent First Lien Debt and Incremental Equivalent Junior
Lien Debt incurred pursuant to Section 7.03(q) not to exceed the Incremental Base Amount (“Incremental
Equivalent Unsecured Debt”, and together with the Incremental Equivalent First Lien Debt and the Incremental Equivalent Junior
Lien Debt, “Incremental Equivalent Debt”); provided that such Incremental Equivalent Unsecured Debt shall (A) have
a maturity date that is at least ninety-one (91) days after the Latest Maturity Date at the time such Incremental Equivalent Unsecured
Debt is incurred, (B) have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life
to Maturity of the Facilities and (C) have terms and conditions (other than (x) pricing, rate floors, discounts,
fees, premiums and optional prepayment or redemption provisions and (y) covenants or other provisions applicable only to
periods after the Latest Maturity Date at the time of incurrence of such Indebtedness and to the extent any financial maintenance covenant
is added for the benefit of such Incremental Equivalent Unsecured Debt, to the extent that such financial maintenance covenant is also
added for the benefit of each Facility remaining outstanding after the incurrence or issuance of such Incremental Equivalent Unsecured
Debt) that (1) in the good faith determination of the Borrower are not materially less favorable (when taken as a whole)
to the Borrower than the terms and conditions of the Loan Documents (when taken as a whole) or reflect market terms and conditions (taken
as a whole) at the time of incurrence or issuance (provided that a certificate of the Borrower as to the satisfaction of the conditions
described in this clause (1) delivered at least five Business Days prior to the incurrence of such Indebtedness, together
with a reasonably detailed description of the materials terms and conditions of such Indebtedness or drafts of documentation relating
thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of
this clause (C), shall be conclusive) or (2) are otherwise as agreed between the Borrower and the lender, holder or other
provider of such Indebtedness; provided, further, that any such Indebtedness incurred by a Restricted Subsidiary that is not a Loan Party,
together with any Indebtedness incurred by a Restricted Subsidiary that is not a Loan Party;
provided that such Indebtedness incurred pursuant to this Sections
7.03(gu),
7.03(q), 7.03(s) or 7.03(w), does not exceed in the aggregate the
greater of (x) $275,000,000 and (y) 35% of LTM Consolidated EBITDA at any time outstanding,
the greater of (i) $165,000,000 and (ii) 2.25% of Total Assets, in each case determined at
the time of incurrence, and (ii) any Permitted Refinancing
thereof;;
(v) Indebtedness
incurred by a Foreign Subsidiary which, when aggregated with the principal amount of all other Indebtedness incurred pursuant to this
clause (v) and then outstanding, does not exceed the greater
of (i) $500,000.000 and (ii) 10% of Foreign Subsidiary Total Assets,
and any Permitted Refinancing thereof;
(w) (i) unsecured
(or secured by assets that do not constitute Collateral) Indebtedness
of the BorrowerHoldings
or any Restricted Subsidiary, so long as the
Consolidated Total Net Leverage Ratio on a consolidated basis for the Borrower and its Restricted Subsidiaries’
most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date on which
such Indebtedness is incurred would have been no greater than 6.25 to 1.00, determined on a pro forma basis (including a pro forma application
of the net proceeds therefrom), as if such Indebtedness had been incurred and the application of proceeds therefrom had occurred at the
beginning of such four-quarter period and without duplication, Permitted Refinancings of such in
an aggregate principal amount under this clause (w), not to exceed
the Available Incremental Amount (“Incremental Equivalent Unsecured Debt”, and together with the Incremental Equivalent
First Lien Debt and the Incremental Equivalent Junior Lien Debt, “Incremental Equivalent Debt”),
so long as no Event of Default under Section 8.01(a) or,
solely with respect to the Borrower, Section 8.01(f) shall
have occurred and be continuing or would exist after giving effect
to such Indebtedness; provided that such IndebtednessIncremental
Equivalent Unsecured Debt shall (A) have a maturity date that is at least ninety-one (91) days after the Latest Maturity
Date at the time such IndebtednessIncremental
Equivalent Unsecured Debt is incurred (subject to the Permitted Earlier
Maturity Indebtedness Exception) and (B) have a Weighted Average Life to Maturity not shorter than the longest remaining
Weighted Average Life to Maturity of the Facilities; provided, further, that any such
Indebtedness incurred by a Restricted Subsidiary that is not a Loan Party, together with any Indebtedness incurred by a Restricted Subsidiary
that is not a Loan Party pursuant to Sections 7.03(g), 7.03(q), 7.03(u) or 7.03(s), does not exceed in the
aggregate at any time outstanding, the greater of (i) $165,000,000
and (ii) 2.25% of Total Assets, in each case determined at the time of incurrence;
(subject to the Permitted Earlier Maturity Indebtedness
Exception;
(x) Indebtedness
arising from Permitted Intercompany Activities;
(y) Indebtedness
in the form of letters of credit, bank guarantees or similar obligations in an aggregate face amount not to exceed $50,000,00075,000,000
at any time outstanding; and
(z) Indebtedness
incurred by Holdings or a Restricted Subsidiary as a result of leases entered into by Holdings or such Restricted Subsidiary in the ordinary
course of business;
(aa) Indebtedness
incurred by Holdings or any Restricted Subsidiary for the benefit of joint ventures, that at the time of, and after giving effect to,
the incurrence thereof, would not exceed the greater of (i) $150,000,000 and (ii) 20% of LTM Consolidated EBITDA
at any time outstanding, in each case determined at the time of incurrence; and
(zbb) all
premiums (if any), interest (including post-petition interest and paid-in-kind
interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through
(yaa) above.
For
purposes of determining compliance with this Section 7.03, in the event that an item of Indebtedness meets the criteria
of more than one of the categories of Indebtedness described above, the Borrower shallmay,
in its sole discretion, classify or later divide, classify or reclassify all or a portion of such item of Indebtedness or any portion
thereof (including as between the Free and Clear Incremental Amount and the Incurrence-Based Incremental Amount) in a manner that complies
with this Section 7.03 and will only be required to include the amount and type of such Indebtedness in one or more
of the above clauses; provided that all Indebtedness outstanding under the Loan Documents, the
ABL Credit Agreement and any Senior Notes Documents and, in each case, any Permitted Refinancing thereof, will at all
times be deemed to be outstanding in reliance only on the exception in Section 7.03(a) (but without
limiting the right of the Borrower to classify and reclassify, or later divide, classify or reclassify, Indebtedness incurred
under Section 2.14 or Sections 7.03(g), 7.03(q), 7.03(s),
7.03(u) or 7.03(w)). In the event that
a portion of Indebtedness or other obligations could be classified as incurred under a “ratio-based” basket (giving pPro
fForma eEffect
to the incurrence of such portion of such Indebtedness or other obligations), the Borrower, in its sole discretion, may classify such
portion of such Indebtedness (and any obligations in respect thereof) as having been incurred pursuant to such “ratio-based”
basket and thereafter the remainder of the Indebtedness or other obligations as having been incurred pursuant to one or more of the other
clauses of this Section 7.03 and if any such test would be satisfied in any subsequent fiscal quarter following the
relevant date of determination, then such reclassification shall be deemed to have automatically occurred at such time. The accrual of
interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be
an incurrence of Indebtedness for purposes of this Section 7.03.
SECTION 7.04 Fundamental
Changes.
Neither Holdings,
the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person,
or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that:
(a) any
Restricted Subsidiary may merge, amalgamate or consolidate with (i) Holdings
or the Borrower (including a merger, the purpose of which is to reorganize Holdings
or the Borrower into a new jurisdiction); provided that Holdings
or the Borrower shall be the continuing or surviving Person and such merger does not result in the Borrower ceasing to be a corporation,
partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia
or (ii) one or more other Restricted Subsidiaries; provided that when any Person that is a Loan Party is merging
with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;
(b) (i) any
Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and
(ii) any Subsidiary may liquidate or dissolve or the BorrowerHoldings
or any Subsidiary may change its legal form (x) if the Borrowerif
Holdings determines in good faith that such action is in the best interest of the BorrowerHoldings
and its Subsidiaries and if not materially disadvantageous to the Lenders and (y) to
the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance
with Sections 7.02 (other than Section 7.02(e)) or Section 7.05
or, in the case of any such business, discontinued, shall be transferred
to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being
understood that in the case of any change in legal
form, a Subsidiary that is a Guarantor will remain a Guarantor unless
such Guarantor is otherwise permitted to cease being a Guarantor hereunder);and
agreed that Omaha Holdings LLC, Gates Global LLC and Gates Holdings 1 LLC may liquidate or dissolve on or following the Amendment No. 9
Effective Date);
(c) any
Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or toHoldings or any another
Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee
must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted
Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Sections 7.02 and 7.03,
respectively;
(d) (I) so
long as no Event of Default under
Sections 8.01(a) or, solely with respect to the Borrower, 8.01(f) exists or
wouldwill result
therefrom, the Borrower may merge or consolidate with any other Person or
assign its rights and obligations under this Agreement and the other Loan Documents to any other Person; provided that
(i) the Borrower shall be the continuing or surviving corporation or entity
or (ii) if the Person formed by or surviving any such merger or consolidationtransaction
is not the Borrower (any such Person, the “Successor CompanyBorrower”),
(A) the Successor CompanyBorrower
shall be an entity organized or existing under the Laws of the United States, any state thereof,
or the District of Columbia or
any territory thereof, (B) the Successor CompanyBorrower
shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower
is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each
Guarantor, unless it is the other party to such merger or consolidationtransaction,
shall have confirmed that its Guaranty shall apply to the Successor Company’sBorrower’s
obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger
or consolidationtransaction, shall have by a supplement
to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor
Company’sBorrower’s
obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged
Property, unless it is the other party to such merger or consolidationtransaction,
shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative
Agent) confirmed that its obligations thereunder shall apply to the Successor Company’sBorrower’s
obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s
certificate and an opinion of counsel, each stating that such merger
or consolidationtransaction and such supplement to
this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and
the perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the
Successor CompanyBorrower
will succeed to, and be substituted for, the Borrower under this Agreement; and
and (II) so long as no Event of Default under Sections 8.01(a) or,
solely with respect to the Borrower, 8.01(f) exists or will result therefrom, Holdings may merge or consolidate with
any other Person or assign its rights and obligations under this
Agreement and the other Loan Documents to any other Person; provided
that (i) Holdings shall be the continuing or surviving corporation or entity or (ii) if the Person formed by
or surviving any such transaction is not Holdings (any such Person, the “Successor Holdings”), (A) the
Successor Holdings shall be an entity organized or existing under the Laws of an Acceptable Jurisdiction, (B) the Successor
Holdings shall expressly assume all the obligations of Holdings under
this Agreement and the other Loan Documents to which Holdings is
a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, and (C) Holdings
shall have delivered to the Administrative Agent an officer’s certificate stating that such transaction and such supplement to
this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and
the perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Holdings
will succeed to, and be substituted for, Holdings under this Agreement;
(e) so
long as no Default exists or would result therefrom (in the case of a merger
involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect
an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be
a Restricted Subsidiary or,
the Borrower or Holdings, which together with each of its
Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant
to the Collateral and Guarantee Requirement;
(f) so
long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition,
the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(g) the
BorrowerHoldings and its Subsidiaries may consummate
Permitted Intercompany Activities; and
(h) the
BorrowerHoldings and its Subsidiaries may effect
the formation, dissolution, liquidation or Disposition of any Subsidiary that is a Delaware Divided LLC, provided that, upon formation
of such Delaware Divided LLC, the Borrower has complied with Section 6.11 to the extent applicable.
SECTION 7.05 Dispositions.
Neither Holdings,
the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, make any Disposition, except:
(a) (i) Dispositions
of obsolete, non-core, worn out or surplus property, whether now
owned or hereafter acquired, in the ordinary course of business and Dispositions of
property no longer used or useful or economically practical to maintain
in the conduct of the business of the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries and,
(ii) Dispositions of property no longer used or useful in the conduct of the business of Holdings
and the Borrower and its Restricted Subsidiaries outside the ordinary course
of business (and for consideration complying with the requirements applicable to Dispositions pursuant to clause (j) below)
in an aggregate amount not to exceed the greater of (x) $25,000,000150,000,000
and (y) 20% of LTM Consolidated EBITDA, in each case determined at the time of such Disposition, and (iii) write-off
or write-down of any unrecoupable loans or advances;
(b) Dispositions
of inventory, accounts receivable, notes receivable, equipment or other
assets or goods held for sale and immaterial assets (including allowing any registrations or any applications for registration
of any immaterial intellectual propertyIP
Rights to lapse or go abandoned in the ordinary course of business), in each
case, in the ordinary course of business or consistent with past practice
or the conversion of accounts receivable to notes receivable;
(c) Dispositions
of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property;
(d) Dispositions
of property to the BorrowerHoldings
or any of the Restricted Subsidiaryies;
provided that if the transferor of such property is a Loan Party, (i) the transferee thereof must be a Loan Party
or (ii) if such transaction constitutes an Investment, such transaction is permitted under Section 7.02;.
(e) (i) to
the extent constituting Dispositions, transactions permitted by Sections 7.01, 7.02 (other than Section 7.02(e)),
7.04 (other than Section 7.04(f)) and 7.06 or
(ii) any Disposition, the proceeds of which are used to fund an Investment permitted by Section 7.02
(other than Section 7.02(e)) or the making of a Restricted
Payment permitted by Section 7.06;
(f) Dispositions
contemplated as of the Closing Date and listed on Schedule 7.05(f);
(g) Dispositions
of Cash Equivalents;
(h) (i) leases,
subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course
of business or consistent with past practice and which do not materially
interfere with the business of the BorrowerHoldings
or any of itsthe
Restricted Subsidiaries and (ii) Dispositions of intellectual property that do not
materially interfere with the business of the Borrower or any of its Restricted Subsidiaries
so long as Holdings, the Borrower or any of its Restricted Subsidiaries
receives a license or other ownership rights to use such intellectual property;(including
abandonment, expiration or lapse) of immaterial IP Rights;
(i) transfers
of property subject to Casualty Events upon receipt of the Net Proceeds of such Casualty Event;
(j) Dispositions
of property or assets or issuance or sale of Equity Interests of any Restricted
Subsidiary; provided that (i) at the time of such Disposition,
no Event of Default under Section 8.01(a) or, solely with respect to the Borrower, 8.01(f) shall
exist or would result from such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered
into at a time when no Default exists), no Default shall
exist or would result from such Disposition and (iisuch
Event of Default under Section 8.01(a) or, solely with
respect to the Borrower, 8.01(f)), (ii) such Disposition
is at fair market value (as determined in good faith by the Borrower)
and (iii) with respect to any Disposition pursuant to this clause (j) for a purchase price
in excess of the greater of $40,000,000,
the Borrower or any of its115,000,000
and 15% of LTM Consolidated EBITDA, Holdings or any of the Restricted Subsidiaries shall receive not less than 75% of suchthe
consideration for such Disposition, together with all other Dispositions
pursuant to this clause (j) since the Closing Date (calculated on a cumulative basis), in the form of cash or Cash
Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual
Liens permitted by Section 7.01 and Liens permitted by Sections 7.01(a), (f), (k), (p), (q), (r)(i), (r)(ii), (dd) (only
to the extent the Obligations are secured by such cash and Cash Equivalents) and (ee) (only to the extent the Obligations are secured
by such cash and Cash Equivalents); provided, however, that for the purposes of this clause (j)(ii)),
the following shall be deemed to be cash:
(A) the
greater of the principal amount and the carrying value of any liabilities (as shown on the Borrower’sHoldings’
(or the Restricted Subsidiaries’, as applicable) most recent balance sheet provided hereunder or in the footnotes thereto
or, if incurred or increased subsequent to the date of such balance sheet,
such liabilities that would have been shown on Holdings’ or such Restricted Subsidiary’s balance sheet or in the footnotes
thereto if such incurrence or increase had taken place on or prior to the date of such balance sheet, as determined by Holdings)
of Holdings or such Restricted Subsidiary, other than liabilities (other
than intercompany liabilities owing to a Restricted Subsidiary being Disposed of) that are by their terms subordinated to the
payment in cash of the Obligations, that are(i) assumed
by the transferee with respect to the applicable Disposition and for which the Borrower and all of itsof
any such assets (or a third party in connection with such transfer) pursuant to a written agreement which releases or indemnifies Holdings
or such Restricted Subsidiariesy
shall have been validly released by all applicable creditors in writingfrom
such liabilities or (ii) otherwise cancelled or terminated in connection with the transaction,
(B) any
securities, notes or other obligations or assets received by the
BorrowerHoldings or the applicable Restricted Subsidiary
from such transferee that are converted by the Borrower,
or reasonably expected to be converted by, Holdings or such Restricted Subsidiary into cash or Cash Equivalents (to the extent
of the cash or Cash Equivalents received) or
expected to be received) or by their terms are required to be satisfied for cash or Cash Equivalents within 180 days following
the closing of the applicable Disposition, and
(C) aggregate
non-cash consideration received by the BorrowerHoldings
or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable
Disposition for which such non-cash consideration is received) not to exceed 4.0% of Total Assetsthe
greater of $200,000,000 and 25% of LTM Consolidated EBITDA at any time (net of any non-cash consideration converted into cash
and Cash Equivalents);
(k) [reserved];the
conveyance, sale, transfer, assignment, lease, sublease, licensing, cross-licensing, sub-licensing or other Disposition of IP Rights
or other general intangibles pursuant to any Intercompany License Agreement or in the ordinary course of business or consistent with
industry practices;
(l) (i) Dispositions
or discounts without recourse of accounts receivable in connection with the compromise or collection thereof in the ordinary course of
business; or consistent
with past practice or consistent with industry norm (including any discount and/or forgiveness thereof and sales to factors or similar
third parties) or in connection with the collection or compromise thereof and (ii) Dispositions of receivables, or participations
therein, and other assets (or the Equity Interests in a Subsidiary, all or substantially all of the assets of which are receivables or
participations therein, and other assets) pursuant to any Qualified Securitization Facility;
(m) Dispositions
of property pursuant to any Sale and Lease-Back Transaction or leasale-leaseback
transactions; provided that the
fair market value of all property so Disposed of after the Closing Date shall not exceed $100,000,000;
(n) (i) any
swap of assets in exchange for services or other assets of comparable or greater value or usefulness to the business of the
BorrowerHoldings and its Subsidiaries as a whole,
as determined in good faith by the management of the Borrower and (ii) any
swap or exchange of like property for use in a Similar Business;
(o) any
issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary (other than Unrestricted
Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or a Restricted Subsidiary which owns an Unrestricted Subsidiary
so long as such Restricted Subsidiary owns no assets other than the Equity Interests of such an Unrestricted Subsidiary);
(p) the
unwinding of any Swap Contract pursuant to its terms;
(q) Dispositions
of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture
parties set forth in joint venture arrangements and similar binding arrangements;
(r) the
lapse or abandonment in the ordinary course of business of any registrations or applications
for registration of any immaterial IP Rights;
(s) Permitted
Intercompany Activities; and
(t) any
Dispositions after the Amendment No. 9 Effective Date in an amount not to exceed the greater of $150,000,000 and 20% of
LTM Consolidated EBITDA in any calendar year (with unused amounts in any calendar year being carried over to the immediately succeeding
calendar year);
(u) so
long as no Event of Default under Sections 8.01(a) or, solely with respect to the Borrower, 8.01(f) has
occurred and is continuing or would result therefrom, Holdings and
its Restricted Subsidiaries may make Dispositions in an unlimited amount so long as the
Consolidated Total Net Leverage Ratio determined on a Pro Forma Basis as
of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available
would be less than or equal to 5.50 to 1.00;
(v) Dispositions
of assets (i) acquired pursuant to or in order to effectuate a Permitted Acquisition which assets are not used or useful
to the core or principal business of Holdings and the Restricted Subsidiaries, (ii) not constituting Collateral not to exceed
the greater of $230,000,000 and 30% of LTM Consolidated EBITDA at any time or (iii) that are made in connection with the
approval of any applicable antitrust authority or otherwise necessary or advisable in
the good faith determination of the Borrower to consummate any acquisition;
(w) to
the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property
(excluding any boot thereon) for use in a Similar Business;
(tx) Dispositions
to effect the formation of any Subsidiary that is a Delaware Divided LLC, provided that upon formation of such Delaware Divided
LLC, the Borrower has complied with Section 6.11, to the extent applicable; and
(y) Dispositions
of any asset between or among Holdings and/or Restricted Subsidiaries as a substantially concurrent interim Disposition in connection
with a Disposition otherwise permitted pursuant to clauses (a) through (x) above.
provided
that any Disposition of any property pursuant to this Section 7.05
(except pursuant to Sections 7.05(e), (i), (p), (r) and (s) and except for Dispositions from a Loan Party to
any other Loan Party) shall be for no less than the fair market value of such property at the time of such Disposition. To
the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than a Loan
Party, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and the Administrative Agent or the Collateral
Agent, as applicable, shall be authorized to take any actions deemed appropriate in
order to evidence or effect the foregoing.
SECTION 7.06 Restricted
Payments.
Neither Holdings,
the Borrower nor any of the Restricted Subsidiaries shall declare or make, directly or indirectly, any Restricted Payment, except:
(a) each
Restricted Subsidiary may make Restricted Payments to the Borrower,Holdings
and other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted
Payment by a non-wholly owned Restricted Subsidiary, to the BorrowerHoldings
and any other Restricted Subsidiary and,
as compared to eachthe
other owners of Equity Interests ofin
such Restricted Subsidiary, on a pro rata or more than pro rata basis
based on their relative ownership interests of the relevant class of Equity Interests or
as otherwise required by such class of Equity Interests);
(b) the
BorrowerHoldings and each Restricted Subsidiary may
declare and make Restricted Payments payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted
by Section 7.03) of such Person or in options, warrants
or other rights to purchase such Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03);
(c) Restricted
Payments to effect the Transactions;
(d) so
long as no Event of Default under Sections 8.01(a) or,
solely with respect to the Borrower, 8.01(f) has occurred and is continuing or would result therefrom, Holdings
and the Borrower and its Restricted Subsidiaries may make Restricted Payments
in an unlimited amount so long as the Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis as
of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available
is less than or equal to 5.50 to 1.00;
(e) to
the extent constituting Restricted Payments, Holdings and the Borrower
and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections
6.17 (other than Sections 6.17(e) and (j)), 7.02 (other than
Sections 7.02(e) and (m)), or
7.04 or 7.08 (other than Sections 7.08(e) and (j));
(f) repurchases
of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of
the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion
of the exercise price of such options or warrants;
(g) the
BorrowerHoldings and each Restricted Subsidiary may
pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement
or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such
direct or indirect parent thereof) from any future, present or former employee, officer, director, manager,
member, partner, independent contractor or consultant (or their respective
Controlled Investment Affiliates or Immediate Family Members) of such Restricted Subsidiary (or the Borrower or any other direct
or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of
employment of any such Person or pursuant to any employee or director equity plan, employee, manager,
officer, member, partner, independent contractor or director stock option plan or any other employee,
manager, officer, member, partner, independent contractor or director benefit plan or any agreement (including any stock subscription
or shareholder agreement) with any employee, manager, director, officer,
member, partner, independent contractor or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect
parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this
clause (g) shall not exceed the greater of (x) $30,000,00075,000,000
and (y) 10% of LTM Consolidated EBITDA in any calendar year (which shall increase
to $60,000,000 subsequent to the consummation of a Qualified IPO) (with unused amounts in any calendar year being carried
over to succeeding calendar years subject to a maximum of $50,000,000 in any calendar year or $100,000,000
subsequent to the consummation of a Qualified IPO, respectively); provided, further, that such amount in
any calendar year may be increased by an amount not to exceed:
(i) to
the extent contributed to the BorrowerHoldings
, the net cash proceeds from the sale or issuance of Equity
Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of the Borrower’s direct or indirect
parent companies, in each case to any future, present or former employees,
officers, members of management, managers, partners, independent
contractors, directors or consultants (or their respective Controlled
Investment Affiliates or Immediate Family Members) of Holdings, the Borrower, any of its Subsidiaries or any of its direct or
indirect parent companies that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests
have been Not Otherwise Applied; plus
(ii) the
net cash proceeds of key man life insurance policies received by the BorrowerHoldings
or its Restricted Subsidiaries; lessplus
(iii) the
amount of any cash bonuses otherwise payable to future, current or former officers, managers, consultants, directors, employees and independent
contractors (or their respective Controlled Investment Affiliates or Immediate Family Members) of any direct or indirect parent of the
Borrower, the Borrower or any of the
Subsidiaries that are foregone in exchange for the receipt of Equity Interests of the Borrower or any direct or indirect parent thereof
pursuant to any compensation arrangement, including any deferred compensation plan; less
(iiiiv) the
amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and,
(ii) and (iii) of this Section 7.06(g);
provided
further
that, the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses
(i), (ii) or (iii) above in any calendar
year and, in addition, the cancellation of Indebtedness owing to Holdings or any Restricted Subsidiary from any future, current or former
employees, officers, managers, directors, consultants or independent contractors (or their respective Controlled Investment Affiliates
or Immediate Family Members) of any parent or indirect parent of the Borrower, the Borrower or any of the Restricted Subsidiaries in
connection with a redemption, acquisition, retirement or repurchase of its Equity Interests will not be deemed to constitute a Restricted
Payment for purposes of this Agreement;
(h) the
BorrowerHoldings may make Restricted Payments in
an aggregate amount not to exceed, when combined with prepayment of Indebtedness pursuant to Section 7.13(a)(iv),
(x) the greater of (i) $215,000,000300,000,000
and (ii) 3.0040%
of Total Assets, plus (y) so long as no Default hasLTM
Consolidated EBITDA, plus (y) subject to, solely in the case of the portion of the Cumulative Credit attributable
to clause (b) thereof, no Event of Default under Sections 8.01(a) or, solely with respect to the
Borrower, 8.01(f) having occurred and is continuing
or would resulting
therefrom, the portion, if any, of the Cumulative Credit on such date that the BorrowerHoldings
elects to apply to this paragraph; provided that, to the extent any such
Restricted Payment is made by utilizing clause (b) of the definition of the Cumulative Credit, the
Consolidated Total Net Leverage Ratio calculated on a Pro Forma Basis shall not exceed 6.00 to 1.00;
(i) Holdings
and/or the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower:
(i) to
pay its organizational, operating costs and expensesother
costs and expenses (including, without limitation, expenses related to auditing or other accounting or tax reporting matters)
incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting
and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and
attributable to the ownership or operations of Holdings, the Borrower
and its Restricted Subsidiaries and,
any costs, expenses and liabilities incurred by Holdings in connection with any litigation or arbitration attributable to the ownership
or operations of Holdings, the Borrower and the Restricted Subsidiaries,
Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable
to the ownership or operations of Holdings, the Borrower and its
Restricted Subsidiaries and listing fees and other costs and expenses attributable
to being a publicly traded company;
(ii) the
proceeds of which shall be used by such parent to pay franchise Taxes and other fees, Taxes and expenses required to maintain its (or
any of its direct or indirect parents’) corporate existence or
privilege of doing business;
(iii) for
any taxable period ending after the Closing Date (A) in which the
BorrowerHoldings and/or any of its Subsidiaries is
a member of a consolidated, combined, unitary or similar Tax group (a “Tax Group”)
of which a direct or indirect parent of Borrower is the common parent or (B) in
which the Borrower is treated as a disregarded entity or partnership for U.S. federal,
state and/or local income (a
“tTax
purposesGroup”)
, to pay U.S. federal, state and local and foreign Taxes that are attributable to the taxable income, revenue, receipts, gross
receipts, gross profits, capital or margin of the BorrowerHoldings
and/or its Subsidiaries; provided that for each taxable period, the amount of such payments made in respect of such taxable period
in the aggregate shall not exceed the amount of such Taxes that the BorrowerHoldings
and its Subsidiaries would have been required to pay if they were a stand-alone Tax Group with
the Borrower as the corporate common parent of such stand-alone Tax Group; provided, further, that the permitted payment
pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary shall be limited to the amount actually
paid with respect to such period by such Unrestricted Subsidiary to the BorrowerHoldings
or its Restricted Subsidiaries for the purposes of paying such consolidated, combined unitary or similar Taxes;
(iv) to
finance any Investment that would be permitted to be made pursuant to Section 7.02 (other
than Section 7.02(e)) if such parent were subject to such Section 7.02;
provided that (A) such Restricted Payment shall be made substantially concurrently
within 120 days the closing of such Investment and
(B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether
assets or Equity Interests) to be contributed to the BorrowerHoldings
or the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person
formed or acquired into the BorrowerHoldings
or its Restricted Subsidiaries in order to consummate such Permitted Acquisition or Investment, in each case, in accordance with
the requirements of Section 6.11;
(v) the
proceeds of which shall be used to pay customary salary, bonus, indemnity
and other benefits payable to future, present or former officers
and, directors, managers,
members, partners, consultants, independent contractors or employees of Holdings,
the Borrower or any direct or indirect parent company of Holdings to the extent such salaries, bonuses,
indemnity and other benefits are attributable to the ownership or operation of the BorrowerHoldings
and the Restricted Subsidiaries; and
(vi) the
proceeds of which shall be used by Holdings or the Borrower to
pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay) fees and expenses (other than to Affiliates)
related to any unsuccessful equity or debt offering by
Holdings (or any direct or indirect parent thereof) that
is directly attributable to the operations of the Borrowerfinancing
transaction, acquisition, divestiture, investment or other non-ordinary course transaction not prohibited by this Agreement (whether
or not successful); provided that any such transaction was in the good faith judgment of Holdings intended to be for the benefit of Holdings
and its Restricted Subsidiaries;
(j) payments
made or expected to be made by the BorrowerHoldings
or any of the Restricted Subsidiaries in respect of required withholding or similar non-US Taxes
payable upon or in connection with the exercise or vesting of Equity Interests
or any other equity award with respect to any future, present or former employee, director, manager,
officer, partner, independent consultant or consultant (or their
respective Controlled Investment Affiliates and Immediate Family Members) of Holdings or any Restricted Subsidiaries and any repurchases
of Equity Interests in consideration of such payments including deemed repurchases in
connection with the exercise or vesting of stock options,
warrants or the issuance of restricted stock units or similar stock based awards;
(k) the
BorrowerHoldings or any Restricted Subsidiary may
(i) pay cash in lieu of fractional Equity Interests in connection with any dividend, distribution,
split, merger, consolidation, amalgamation or combination
thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make
cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in
accordance with its terms;
(l) after
a Qualified IPO,so long as no Event of Default under Sections
8.01(a) or, solely with respect to the Borrower, 8.01(f) has occurred and is continuing or would
result therefrom (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower
to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and
(ii) Restricted Payments not to exceed up to the sum of (A) up
to 67% per annum
of the net proceeds received by (or contributed to) the BorrowerHoldings
and its Restricted Subsidiaries from such Qualified IPO and (Bany
other follow on Equity Offering and (y) in the case of an SPAC IPO, cash held by Holdings or any of its Restricted Subsidiaries
remaining following the consummation of the SPAC IPO and (C) Restricted Payments in an aggregate amount per annum
not to exceed 7.00% of Market Capitalization;
(m) [reserved]distributions
or payments of Securitization Fees and purchases of receivables in connection with any Qualified Securitization Facility or any repurchase
obligation in connection therewith;
(n) (i) the
declaration and payment of any cash dividends by the BorrowerHoldings
or (ii) the declaration and payment of dividends or distributions by the BorrowerHoldings
to, or the making of loans to, any direct or indirect parent company of the BorrowerHoldings
in amounts required for any direct or indirect parent company of the BorrowerHoldings
to declare and pay any cash dividends, in each case of subclauses (i) and (ii), pursuant to the terms of the applicable
certificate of designations to holders of any class or series of preferred stock issued in exchange for Equity Interests of the Asian
JV; provided, that the aggregate amount of Restricted Payments made under this clause, (A) shall be unlimited if,
after giving pro forma effect to the payment of such Restricted Payment, the Consolidated Total Net Leverage Ratio is less than or equal
to 6.00 to 1.00 and (B) shall not exceed $50.0 million100,000,000
in any calendar year if, after giving pro forma effect to the payment of such Restricted Payment, the Consolidated Total Net Leverage
Ratio is greater than 6.00 to 1.00;
(o) the
distribution, by dividend or otherwise, of Equity Interests of, an
Unrestricted Subsidiary (or a Restricted Subsidiary that owns one
or more Unrestricted Subsidiaries and no other material assets) or Indebtedness owed to the BorrowerHoldings
or a Restricted Subsidiary by an Unrestricted Subsidiary (or a Restricted
Subsidiary that owns one or more Unrestricted Subsidiaries and no other material assets), in each case, other than Unrestricted
Subsidiaries the primary assets of which are cash and/or Cash Equivalents) (or
a Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary
owns no assets other than Equity Interests of an Unrestricted Subsidiary (other
than Unrestricted Subsidiaries the primary assets of which are cash and/or Cash Equivalents)); and;
(p) Restricted
Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and
Holdings elects to apply under this clause (p) or (ii) without duplication with clause (i), in
an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after the Closing Date,
if the acquisition of such property or assets was financed with Excluded Contributions.,
in each case, to the extent Not Otherwise Applied;
(q) payments
or distributions to dissenting stockholders pursuant to applicable Law (including in connection with, or as a result of, exercise of
appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection
with a consolidation, merger or transfer of assets permitted by Section 7.02 (other than Section 7.02(e)) or
Section 7.04;
(r) the
payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration
of the dividend or other distribution or the giving of the redemption notice, as the case may be, if at the date of declaration or notice,
the dividend or other distribution or redemption payment would have complied with the provisions of this Agreement;
(s) Holdings
may make Restricted Payments constituting interest payments on Disqualified Equity Interests, to the extent such Disqualified Equity
Interests constitutes Indebtedness, was incurred in compliance with Section 7.03 and such Restricted Payments are included
in the calculation of Consolidated Interest Expense;
(t) Holdings
may pay Restricted Payments to pay for the redemption, discharge, defeasance, retirement, repurchase or other acquisition, in each case
for nominal value, of Equity Interests of Holdings (or any direct
or indirect parent thereof) or Holdings from a former investor of
a business acquired in an acquisition or other Investment or a current or former employee, officer, director, manager, or consultant
or independent contractor of a business acquired in an acquisition or other Investment (or their Controlled Investment Affiliates or
Immediate Family Members), which Equity Interests was issued as part of an earn-out or similar arrangement in the acquisition of such
business, and which redemption, acquisition, retirement or repurchase relates the failure of such earn-out to fully vest; and
(v) any
payment that is intended to prevent any Indebtedness from being treated as an “applicable high yield discount obligation”
within the meaning of Section 163(i)(1) of the Code
For purposes of determining
compliance with this Section 7.06, in the event that all
or a portion of a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described above,
the Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such Restricted Payment
or any portion thereof in a manner that complies with this Section 7.06 and will only be required to include the
amount and type of such Restricted Payment in one or more of the above clauses. In the event that a Restricted Payment or other obligations
could be classified as incurred under a “ratio-based” basket (giving pPro
fForma eEffect
to the making of such portion of such Restricted Payment), the Borrower, in its sole discretion, may classify such portion of such Restricted
Payment (and any obligations in respect thereof) as having been made pursuant to such “ratio-based” basket and thereafter
the remainder of the Restricted Payment as having been made pursuant to one or more of the other clauses of this Section 7.06
and if any such test would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such
reclassification shall be deemed to have automatically occurred at such time.
SECTION 7.07 Change
in Nature of Business[Reserved].
The
Borrower shall not, nor shall the Borrower permit any of the Restricted Subsidiaries
to, directly or indirectly, engage in any material line of business substantially different from those lines of business conducted by
the Borrower and the Restricted Subsidiaries on the Closing Date or
any business reasonably related, complementary, synergistic or ancillary thereto or reasonable extensions thereof.
SECTION 7.08 Transactions
with Affiliates[Reserved].
The
Borrower shall not, nor shall the Borrower permit any of the Restricted Subsidiaries
to, directly or indirectly, enter into any transaction of any kind with any Affiliate of the Borrower, whether
or not in the ordinary course of business, other than (a) loans and other transactions
among the Borrower and its Restricted Subsidiaries or any entity that
becomes a Restricted Subsidiary as a result of such loan or other transaction to the extent permitted under this
Article VII, (b) on terms substantially as
favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the
Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with
a Person other than an Affiliate, (c) the Transactions
and the payment of Transaction Expenses as part of or in connection with the Transactions, (d) so long as no Event of Default
under Sections 8.01(a) or (f) has
occurred and is continuing, the payment of management, monitoring,
consulting, transaction, termination and advisory fees in an aggregate amount pursuant to the Investor Management Agreement and related
indemnities and reasonable expenses, (e) Restricted Payments permitted under Section 7.06 and
Investments permitted under Section 7.02, (f) employment and severance arrangements
between the Borrower and its Restricted Subsidiaries and their respective
officers and employees in the ordinary course of business and transactions pursuant to stock option plans
and employee benefit plans and arrangements in the ordinary course of business, (g) the payment of customary fees and reasonable
out of pocket costs to, and indemnities provided on behalf of, directors,
managers, officers, employees and consultants of the Borrower and its Restricted Subsidiaries (or any
direct or indirect parent of the Borrower)
in the ordinary course of business to the extent attributable to the ownership or operation of the Borrower
and its Restricted Subsidiaries, (h) transactions pursuant to agreements in existence
on the Closing Date and set forth on Schedule 7.08 or any amendment
thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (i) customary
payments by the Borrower and any of its Restricted Subsidiaries to the Investors made for any financial
advisory, financing, underwriting or placement services or in respect of other investment banking activities (including in connection
with acquisitions or divestitures), which payments are approved by a majority of the members of the board of directors or managers or
a majority of the disinterested members of the board of directors or managers of the Borrower,
in good faith, (j) payments by the Borrower or any of
its Subsidiaries pursuant to any tax sharing agreements with any direct or indirect parent of the Borrower
to the extent attributable to the ownership or operation of the Borrower
and its Subsidiaries, but only to the extent permitted by Section 7.06(i)(iii), (k) the
issuance or transfer of Equity Interests (other than Disqualified Equity Interests) of Holdings to
any Permitted Holder or to any former, current or future director,
manager, officer, employee or consultant (or any Affiliate of any of the foregoing) of the Borrower,
any of its Subsidiaries or any direct or indirect parent thereof, (l) [reserved], (m) Permitted
Intercompany Activities or (n) a joint venture which would constitute a transaction with
an Affiliate solely as a result of the Borrower or any Restricted Subsidiary
owning an equity interest or otherwise controlling such joint venture
or similar entity.
SECTION 7.09 Burdensome
Agreements.
TheHoldings
and the Borrower shall not, nor shall the BorrowerHoldings
permit any of the Restricted Subsidiaries to, enter into or permit to exist any Contractual Obligation (other than this Agreement
or any other Loan Document) that limits the ability ofprohibits
(a) any Restricted Subsidiary of Holdings (other than
the Borrower) that is not a Guarantor to make Restricted Payments
to the BorrowerHoldings
or any Guarantor or to make or repay intercompany loans and advances to the Borrower or any Guarantor or (b) any
Loan Party to create, incur, assume or suffer to exist Liens on property of such Person that
constitutes Collateral for the benefit of the Lenders with respect to the Facilities and the Obligations or under the Loan Documents;
provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations which (i)(x) exist
on the Closing Date and (to the extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09
hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement
evidencing Indebtedness, are set forth in any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing
of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing does not expand the scope of such Contractual
Obligation, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted
Subsidiary of the Borrower, so long as such Contractual Obligations were not entered
into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower;
provided, further, that this clause (ii) shall not apply to Contractual Obligations that are binding on a
Person that becomes a Restricted Subsidiary pursuant to Section 6.14, (iii) represent Indebtedness of
a Restricted Subsidiary of the Borrower which is not a Loan Party which is permitted
by Section 7.03, (iv) arise in connection with (x) any
Lien permitted by Section 7.01 and relate to the property
subject to such Lien or (y) any Disposition permitted
by Sections 7.04 or 7.05 and relate solely to the assets or Person subject to such Disposition, (v) are customary
provisions in joint venture agreements and other similar agreements applicable to joint ventures permitted under Section 7.02
and applicable solely to such joint venture entered into in the ordinary course of business, (vi) are negative pledges
and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent
any negative pledge relates to the property financed by such Indebtedness, (vii) are customary restrictions on leases, subleases,
licenses or asset sale agreements otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (viii) comprise
restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(e),
(g) or (m) and to the extent that such restrictions apply only to the property or assets securing
such Indebtedness or to the Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions
restricting subletting or assignment of any lease governing a leasehold interest of the BorrowerHoldings
or any Restricted Subsidiary or the assignment of any license or
sublicense agreement, (x) are customary provisions restricting assignment of any agreement entered into in the ordinary
course of business, (xi) are restrictions on cash or other deposits imposed by customers under contracts entered into in
the ordinary course of business, (xii) or
consistent with past practice, (xii) are restrictions set forth in any agreement evidencing or governing any Qualified Securitization
Facility that in the good faith determination of the Borrower are
necessary or advisable to effect such Qualified Securitization Facility
and relate solely to the Securitization Assets subject thereto, (xiii) arise in connection with cash or other deposits
permitted under Sections 7.01 and 7.02 and limited to such cash or deposit and (xiii,
(xiv) any agreement or instrument (A) relating to any Indebtedness, Disqualified Equity Interests permitted
to be incurred or issued subsequent to the Closing Date pursuant to Section 7.03 hereof if the encumbrances and restrictions
are not materially more disadvantageous, taken as a whole, to the Lenders than is customary in comparable financings for similarly situated
borrowers (as determined in good faith by the Borrower) or is otherwise in effect on the Closing Date and (B) either (x) the
Borrower determines that such encumbrance or restriction will not materially adversely affect the Borrower’s ability to make principal
and interest payments on the Loans as and when they come due or (y) such encumbrances and restrictions apply only during
the continuance of a default in respect of a payment or financial maintenance covenant relating to such Indebtedness and (xv) are
customary restrictions contained in any Senior Notes Documents, the ABL Credit Agreement
or any Permitted Refinancing thereof.
SECTION 7.10 Use
of Proceeds[Reserved].
The
proceeds of the Initial Dollar Term Loans and Initial Euro Term Loans received on the Closing Date, together with the proceeds of the
issuance of the Senior Notes received on the Closing Date and borrowings under the ABL Credit Agreement shall not be used for any purpose
other than for the Transactions. The proceeds of the Revolving Credit Loans on the
Closing Date in an aggregate amount not to exceed $30,000,000 will be used to finance the Transactions and fees and expenses related
to the Transactions and for working capital needs, including working capital purchase price adjustments pursuant to the Purchase Agreement.
After the Closing Date, the proceeds of the Revolving Credit Loans and Swing Line Loans shall
be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement, including Permitted Acquisitions
and other Investments. The Letters of Credit shall be used solely to support obligations of the
Borrower and its Subsidiaries incurred for working capital, general corporate purposes and any other
purpose not prohibited by this Agreement. The proceeds of the Initial
B-2 Euro Term Loans shall be applied on the Amendment No. 2 Effective Date to prepay the
entire amount of the Initial B-1 Euro Term Loans. The proceeds of the Initial B-3
Dollar Term Loans shall be applied on the Amendment No. 4
Effective Date to prepay the entire amount of the Initial B-2 Dollar
Term Loans. The proceeds of the Initial B-4 Dollar Term Loans shall be applied on the Amendment No. 6
Effective Date to prepay the entire amount of the Initial B-2 Euro Term Loans.
SECTION 7.11 Financial
Covenant.
The
BorrowerExcept with the written consent of the Required
Revolving Credit Lenders, Holdings will not permit the Consolidated First Lien Net Leverage Ratio as of the last day of a Test
Period (commencing with the Test Period ending December 31, 2014) to exceed
5.754.50 to 1.00
(provided that the provisions of this Section 7.11 shall not be applicable to any such Test Period if on the
last day of such Test Period the aggregate principal amount of Revolving Credit Loans, Swing Line Loans
and/or Letters of Credit (excluding up to $35,000,000 of Letters of Credit and other Letters of Credit which have been
Cash Collateralized or backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer) that are issued and/or
outstanding is equal to or less than 30% of the Revolving Credit Facility) (the
“Financial Covenant”).
SECTION 7.12 Accounting
Changes[Reserved].
The
Borrower shall not make any change in its fiscal year; provided, however,
that the Borrower may, upon written notice to the Administrative Agent,
change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the
Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments
to this Agreement that are necessary to reflect such change in fiscal year.
SECTION 7.13 Prepayments,
Etc. of Indebtedness.
(a) TheHoldings
and the Borrower shall not, nor shall the BorrowerHoldings
permit any of the Restricted Subsidiaries to, directly or indirectly, voluntarily
prepay, redeem, purchase, defease or otherwise satisfy on or prior
to the scheduleddate that
occurs earlier than one year prior to the stated maturity date thereof
in any manner (it being understood that (A) payments
of regularly scheduled principal and interest, (B) customary
“AHYDO catchup” payments and (C) any prepayment,
redemption, purchase, defeasance or other retirement in anticipation
of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of such prepayment
redemption, purchase, defeasance or other retirement thereof shall be permitted), any subordinated
Indebtedness incurred under Section 7.03(g), (q), (s), (u) or (w) or any otherprincipal
amount in respect of any Iindebtedness
for borrowed money that is or is required to be contractually
payment subordinated, in right of payment, to the Obligations pursuant to the
terms of the Loan Documents or any Indebtedness secured
by the Collateral on a junior priority basis to the Liens securing
the Obligations (it being understood that ABL Debt will not be considered Junior Financing),
in each case, in an aggregate principal amount outstanding in excess of the Threshold Amount (collectively, “Junior Financing”),
or make any payment in violation of any subordination terms of any Junior Financing Documentation, except (i) the
refinancing thereof with the Net Proceeds of any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing and,
if such Indebtedness was originally incurred under Section 7.03(g), (q), (s), (uw)
or (wz), is permitted
pursuant to Section 7.03(g), (q), (s), (uw)
or (wz)), to the
extent not required to prepay any Loans pursuant to Section 2.05(b), (ii) the conversion
of any Junior Financing to, or the exchange of Junior Financing for,
Equity Interests (other than Disqualified Equity Interests) of Holdingsthe
Borrower or any of its direct or indirect parents, (iii) the prepayment of Indebtedness of the
BorrowerHoldings or any Restricted Subsidiary to
the BorrowerHoldings
or any Restricted Subsidiary to the extent not prohibited by the subordination provisions contained in the Intercompany Note and,
(iv) prepayments, redemptions, purchases, defeasances
and other payments in respect of Junior Financings prior to their scheduled maturity in (x) an amount equal to the amount
of Excluded Contributions previously received and Holdings elects to apply under this clause (iv) or (y) without
duplication with clause (x), in an amount equal to the Net Proceeds from a Disposition in respect of property or assets acquired after
the Closing Date, if the acquisition of such property or assets was financed with Excluded Contributions, in each case, to the extent
Not Otherwise Applied, (v) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior
Financings prior to their scheduled maturity in an aggregate amount not to exceed, when combined with
the amount of Restricted Payments pursuant to Section 7.06(h),
(x) the greater of (iI)
$215,000,000 and (ii) 3.00% of Total Assets plus (y)300,000,000
and (II) 40% of LTM Consolidated EBITDA, plus (y) subject to, solely in the case of the portion of the
Cumulative Credit attributable to clause (b) thereof, no Event of Default under Sections 8.01(a) or
(f) with respect to the Borrower having occurred and continuing or resulting therefrom, the portion,
if any, of the Cumulative Credit on such date that the Borrower elects to apply to this clause (a).,
(vi) prepayments, redemptions, purchases, defeasances and other payments in respect of Junior Financings prior to their
scheduled maturity in an aggregate amount not to exceed the Available RP Capacity Amount and (vii) so
long as no Event of Default under Section 8.01(a) or,
solely with respect to the Borrower, Section 8.01(f) has
occurred and is continuing or would result therefrom, prepayments,
redemptions, or purchases, defeasances and other payments in respect of Junior Financings prior to their scheduled maturity in an unlimited
amount so long as the Consolidated Total Net Leverage Ratio calculated
on a Pro Forma Basis as of the last day of the most recently ended
period of four consecutive fiscal quarters for which financial statements are internally available is less than or equal to 5.50 to 1.00.
(b) TheHoldings
and the Borrower shall not, nor shall itthe
Borrower permit any of the Restricted Subsidiaries to amend, modify or change in any manner materially adverse to the interests
of the Lenders any term or condition of any Junior Financing Documentation in
respect of any Junior Financing having an aggregate outstanding principal amount in excess of the Threshold Amount without the
consent of the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed).
For purposes of determining
compliance with this Section 7.13, in the event that a payment meets the criteria of more than one of the categories
of payments described above, the Borrower may, in its sole discretion, classify or later divide, classify or reclassify all or a portion
of such payment or any portion thereof in a manner that complies with this Section 7.13 and will only be required to include
the amount and type of such payment in one or more of the above clauses. In the event that a payment or other obligations could be classified
as incurred under a “ratio-based” basket (giving pPro
fForma eEffect
to the making of such portion of such payment), the Borrower, in its sole discretion, may classify such portion of such payment (and
any obligations in respect thereof) as having been made pursuant to such “ratio-based” basket and thereafter the remainder
of the payment as having been made pursuant to one or more of the other clauses of this Section 7.13 and if any such test
would be satisfied in any subsequent fiscal quarter following the relevant date of determination, then such reclassification shall be
deemed to have automatically occurred at such time.
SECTION 7.14 Permitted
Activities.
Holdings
shall not engage in any material operating or business activities; provided that the following and activities incidental thereto shall
be permitted in any event: (i) its ownership of the Equity Interests of Borrower and activities incidental thereto, (ii) the
maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance), (iii) the
performance of its obligations with respect to the Loan Documents, the Senior Notes Documents, the ABL Credit Agreement and any other
Indebtedness, (iv) any public offering of its common stock or any other issuance or sale of its Equity Interests, (v) financing
activities, including the issuance of securities, payment of dividends, making contributions to the capital of the Borrower, (vi) incurrence
of debt and guaranteeing the obligations of the Borrower (other than as described under clause (iii) above) in an amount not to
exceed $100,000,000, (vii) participating in tax, accounting and other administrative matters as owner of the Borrower, (viii) holding
any cash incidental to any activities permitted under this Section 7.14, (ix) providing indemnification to officers, managers
and directors, (x) in the case of Holdings I, following a Holdings II Event, its ownership of the Equity Interests of Holdings II
and activities incidental thereto, (xi) its ownership of the Equity Interests in a subsidiary that holds net proceeds of a Specified
IPO which Equity Interests may be contributed, directly or indirectly, to the Borrower in connection with a Specified IPO and (xii) any
activities incidental to the foregoing. Holdings shall not incur any Liens on Equity Interests of the Borrower other than those for the
benefit of the Obligations and ABL Debt or any comparable term in any Permitted Refinancing thereof and Holdings shall not own any Equity
Interests other than those of the Borrower. Upon the occurrence of a Holdings II Event, Holdings I shall (x) cause Holdings II to
(i) duly execute and deliver to the Administrative Agent a joinder to this Agreement separately, and jointly and severally, incurring
the obligations of “Holdings” as a Guarantor, a Security Agreement Supplement and joinders to each applicable Intercreditor
Agreement, if applicable, each in form and substance reasonably satisfactory to the Administrative Agent (consistent with the Security
Agreement and other applicable agreements in effect on the Amendment No. 2 Effective Date), (ii) deliver any and all certificates
representing Equity Interests in the Borrower owned by Holdings II, accompanied by undated stock powers or other appropriate instruments
of transfer executed in blank and (iii) take whatever action (including the filing of Uniform Commercial Code financing statements)
as may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the
Collateral Agent designated by it) valid and perfected Liens to the extent required by the Collateral and Guarantee Requirement, and
to otherwise comply with the requirements of the Collateral and Guarantee Requirement and (y) deliver such other certificates, opinions
of counsel and other documentation with respect to Holdings II as reasonably requested by the Administrative Agent.
ARTICLE VIII
Events of Default and
Remedies
SECTION 8.01 Events
of Default.
Any of the following from and
after the Closing Date shall constitute an event of default (an “Event of Default”):
(a) Non-Payment.
Any Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or
(ii) within five (5) Business Days after the same becomes
due, any interest on any Loan or (iii) within ten Business Days after
the same becomes due, any regularly scheduled fees or any other amounts payable hereunder or with respect to any other Loan Document;
or
(b) Specific
Covenants. TheHoldings,
the Borrower, or
any Restricted Subsidiary or, in the case of Section 7.14,
Holdings, fails to perform or observe any term, covenant or agreement contained in any of Section 6.03(a),
6.05(a) (solely with respect to the Borrower) or 6.16 or Article VII;
provided that a(i) an
Event of Default as a result of a breach of Section 7.11 (a “Financial Covenant Event of Default”)
is subject to cure pursuant to Section 8.05 and (ii) subsequent
delivery of a notice to the Administrative Agent of the occurrence of any Default or Event of Default shall cure an Event of Default
for failure to provide a notice under Section 6.03(a) unless a Responsible Officer of Holdings or the Borrower had actual knowledge
that such Default or Event of Default had occurred and was continuing; provided, further, that a Financial Covenant
Event of Default or any breach of a financial maintenance covenant under any Incremental
Revolving Credit Loan or any revolving facility that constitutes Credit Agreement Refinancing Indebtedness shall not constitute
an Event of Default with respect to any Term Loans unless and until the Revolving Credit Lenders have declared all amounts outstanding
under the Revolving Credit Facility to be immediately due and payable and all outstanding Revolving Credit Commitments to be immediately
terminated, in each case in accordance with this Agreement and such declaration has not been rescinded on or before such date (the “Term
Loan Standstill Period”); or
(c) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Sections 8.01(a) or
(b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30)
days after written notice thereof by the Administrative Agent to the Borrower; or
(d) Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower
or any other Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith
shall be incorrect in any material respect when made or deemed made and,
to the extent capable of being cured, such incorrect representation or warranty shall remain incorrect for a period of thirty (30) days
after written notice thereof from the Administrative Agent to the Borrower; or
(e) Cross-Default.
Any Loan PartyHoldings
or any Restricted Subsidiary (A) fails to make any payment beyond the applicable grace period with respect thereto, if any,
(whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than any
Indebtedness hereunder) having an outstanding aggregate principal amount of not less than the Threshold Amount, or (B) fails
to observe or perform any other agreement or condition relating to any such Indebtedness
(other than any Indebtedness hereunder) having an outstanding aggregate
principal amount of not less than the Threshold Amount, or any other event occurs (other than, with respect to Indebtedness consisting
of Swap AgreementContracts,
termination events or equivalent events pursuant to the terms of such Swap AgreementsContracts),
the effect of which default or other event 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 or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness
to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such Indebtedness to be made, prior to its stated maturity; provided that (x) such
failure 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 Section 8.02 and (y) this clause (e))(B) 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, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or
(f) Insolvency
Proceedings, Etc. Any Loan Party or any Restricted Subsidiary institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it
or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator,
administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues
undischarged or unstayed for sixty (60) calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to
all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty
(60) calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability
to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary becomes unable or admits in writing its inability
or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process
is issued or levied against all or any material part of the property of the Loan Parties, taken as a whole, and is not released, vacated
or fully bonded within sixty (60) days after its issue or levy; or
(h) Judgments.
There is entered against any Loan PartyHoldings
or any Restricted Subsidiary a final judgment or order for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or
order and has not denied coverage) and such judgment or order shall not have been satisfied, settled,
vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or
(i) Invalidity
of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Sections 7.04 or 7.05)
or as a result of acts or omissions by the Administrative Agent or Collateral Agent or any Lender or the satisfaction in full of all
the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any provision
of any Loan Document or the validity or priority of a Lien as required by the Collateral Documents on a material portion of the Collateral;
or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document (other than as a result
of repayment in full of the Obligations and termination of the Aggregate Commitments), or purports in writing to revoke or rescind any
Loan Document; or
(j) Change
of Control. There occurs any Change of Control; or
(k) Collateral
Documents. (i) Any Collateral Document after delivery thereof pursuant to Sections
4.01 or Sections,
6.11, or
6.13 or 6.16the
Security Agreement shall for any reason (other than pursuant to the terms thereof including as a result of a transaction not prohibited
under this Agreement) cease to create a valid and perfected Lien, with the priority required by the Collateral Documents and the Intercreditor
Agreements on and security interest in any material portion of the Collateral purported to be covered thereby, subject to Liens permitted
under Section 7.01, (x) except to the extent that any such perfection or priority is not required pursuant to the Collateral
and Guarantee Requirement or any loss thereof results solely from the failure of the
Administrative Agent or the Collateral Agent to maintain possession of certificates actually delivered to it representing securities
pledged under the Collateral Documents or to file Uniform Commercial Code continuation statements and (y) except as to Collateral
consisting of Real Property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has
not denied coverage, or (ii) any of the Equity Interests of the Borrower shall for any reason cease
to be pledged pursuant to the Collateral Documents; or
(l) ERISA.
(i) An ERISA Event occurs which has resulted or cwould
reasonably be expected to result in liability of a Loan Party or a Restricted Subsidiary or any ERISA Affiliate in an aggregate amount
which cwould reasonably
be expected to result in a Material Adverse Effect, or (ii) a Loan Party, any Restricted Subsidiary or any ERISA Affiliate fails
to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan which has resulted
or would reasonably be expected to result in liability of a Loan Party or a Restricted Subsidiary or any ERISA Affiliate in an
aggregate amount which cwould
reasonably be expected to result in a Material Adverse Effect; or.
(m) Junior
Financing Documentation. (i) Any of the Obligations of the Loan Parties under the Loan Documents for any reason
shall cease to be (A) “Senior Debt,” “Senior Indebtedness,” “Guarantor Senior Debt” or “Senior
Secured Financing” (or any comparable term) under, and as defined in, any Junior Financing Documentation and (B) “First
Lien Obligations” (or any comparable term) under, and as defined in, the Junior Lien Intercreditor Agreement under, and as defined
in any Junior Financing Documentation or (ii) the subordination provisions set forth in any Junior Financing Documentation shall,
in whole or in part, cease to be effective or cease to be legally valid, binding and enforceable against
the holders of any Junior Financing, if applicable.
Notwithstanding
anything to the contrary, no Default or Event of Default shall constitute a “Default” or “Event of Default” if
such Default or Event of Default has not been cured or waived and is continuing for more than two (2) years following the earlier
of (a) notice to the Administrative Agent of such Default or Event of Default and (b) public disclosure of, or Lenders become
generally aware of, such Default or Event of Default or the circumstances giving rise thereto. Additionally, any Default or Event of
Default (including any Default or Event of Default (or similar term) resulting from a failure to provide notice of a Default or Event
of Default), other than with respect to a Default under Section 8.01(a) or
(f), shall be deemed not to “exist” or be “continuing” if (i) with respect to any Default or Event of Default
that occurs due to a failure by Holdings, the Borrower or any of
its Restricted Subsidiaries to take any action (including taking
any action by a specified time), Holdings, the Borrower or such Restricted Subsidiary takes such action, or (ii) with respect to
any Default or Event of Default that occurs due to the taking of any action by Holdings, the
Borrower or any of its Restricted Subsidiaries that is not then permitted
under the Loan Documents, on the earlier to occur of (A) the date such action would be permitted to be taken hereunder pursuant
to an applicable amendment or waiver permitting such action, or otherwise, and (B) the date on which such action is unwound or otherwise
modified to the extent necessary for such revised action to be permitted at such time (including after giving effect to any amendments
or waivers); provided that, subject to Section 8.01(b)(ii), any Default or Event of Default resulting from the failure to deliver
a notice of Default or Event of Default shall cease to exist and be cured in all respects if the underlying Default or Event of Default
giving rise to such notice requirement shall have ceased to exist and/or be cured. Any court of competent jurisdiction may (x) extend
or stay any grace period prior to when any actual or alleged Default becomes an actual or alleged Event of Default or (y) stay the
exercise of remedies by any Administrative Agent upon the occurrence of an actual or alleged Event of Default, in each case of clauses
(x) and (y), in accordance with the requirements of applicable Law.
SECTION 8.02 Remedies
Upon Event of Default.
If any Event of Default occurs
and is continuing, the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions
(or, if a Financial Covenant Event of Default occurs and is continuing and prior to the expiration of the Term Loan Standstill Period,
at the request of the Required Revolving Credit Lenders under the Revolving Credit Facility only, and in such case only with respect
to the Revolving Credit Commitments, Revolving Credit Loans, Swing Line Loans, L/C Obligations,
any Letters of Credit and L/C Credit Extensions):
(i) declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuers to make L/C Credit Extensions to be terminated, whereupon
such commitments and obligation shall be terminated;
(ii) declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby expressly waived by the Borrower;
(iii) require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(iv) exercise
on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents or applicable Law;
provided
that upon the occurrence of an actual or deemed entry of an order for relief with respect to Holdings
or the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation
of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due and payable and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative
Agent or any Lender.
SECTION 8.03 Exclusion
of Immaterial Subsidiaries.
Solely for the purpose of determining
whether a Default or Event of Default has occurred under Section 8.01(f) or (g), any reference in any such clause
to any Restricted Subsidiary or Loan Party shall be deemed not to include any Restricted Subsidiary (an “Immaterial Subsidiary”)
affected by any event or circumstances referred to in any such clause that did not, as of the last day of the most recent completed fiscal
quarter of the BorrowerHoldings,
have assets with a fair market value in excess of 2.55%
of Total Assets(it being agreed that all Restricted Subsidiaries affected by any event or circumstance referred to in any such clause
shall be considered together, as a single consolidated Restricted Subsidiary, for purposes of determining whether the condition specified
above is satisfied).
SECTION 8.04 Application
of Funds.
After the exercise of remedies
provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations
have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received
on account of the Obligations shall, subject to any Intercreditor Agreements then in effect, be applied by the Administrative Agent in
the following order (to the fullest extent permitted by mandatory provisions of applicable Law):
First,
to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest,
but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to the
Administrative Agent or the Collateral Agent in its capacity as such;
Second,
to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs payable under Section 10.04 and amounts payable under Article III),
ratably among them in proportion to the amounts described in this clause Second payable to them;
Third,
to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C Borrowings, and any fees,
premiums and scheduled periodic payments due under Treasury Services Agreements or Secured Hedge Agreements, ratably among the Secured
Parties in proportion to the respective amounts described in this clause Third payable to them;
Fourth,
to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings (including to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit), and any breakage, termination or other
payments under Treasury Services Agreements or Secured Hedge Agreements, ratably among the Secured Parties in proportion to the respective
amounts described in this clause Fourth held by them;
Fifth,
to the payment of all other Obligations of the Borrower that are due and payable to the Administrative Agent and the other Secured Parties
on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other
Secured Parties on such date; and
Last,
the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(g),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in
the order set forth above and, if no Obligations remain outstanding, to the Borrower as applicable. Notwithstanding the foregoing, no
amounts received from any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.
SECTION 8.05 Borrower’s
Right to Cure.
(a) Notwithstanding
anything to the contrary contained in Sections 8.01 or 8.02, if the
BorrowerHoldings determines that an Event of Default
under the covenant set forth in Section 7.11 has occurred or may occur, during the period commencing after the
beginning of the last fiscal quarter included in such Test Period and ending ten (10) Business Days after the date on which financial
statements are required to be delivered hereunder with respect to such fiscal quarter, (the
Investors may make“Cure
Expiration Date”), a Specified Equity Contribution may
be made to Holdings (a “Designated Equity Contribution”), and the amount of the net cash proceeds thereof shall
be deemed to increase Consolidated EBITDA with respect to such applicable quarter; provided that such net cash proceeds (i) are
actually received by the BorrowerHoldings
as cash common equity (including through capital contribution of such net cash proceeds to the
BorrowerHoldings) during the period commencing after
the beginning of the last fiscal quarter included in such Test Period by the Borrower and ending ten
(10) Business Days after the date on which financial statements are required to be delivered with
respect to such fiscal quarter hereunderHoldings and ending
on the Cure Expiration Date and (ii) are Not Otherwise Applied. The parties hereby acknowledge that this Section 8.05(a) may
not be relied on for purposes of calculating any financial ratios other than as applicable to Section 7.11 and
shall not result in any adjustment to any baskets or other amounts other than the amount of the Consolidated EBITDA for the purpose of
Section 7.11. Notwithstanding anything to the contrary
contained in Section 8.01 and Section 8.02, (A) upon designation of the Designated Equity Contribution by Holdings in
an amount necessary to cure any Event of Default under the covenant
set forth in Section 7.11, such covenant will be
deemed satisfied and complied with as of the end of the relevant fiscal quarter with the same effect as though there had been no failure
to comply with such covenant and any Event of Default under such covenant (and any other Default as a result thereof) will be deemed
not to have occurred for purposes of the Loan Documents, and
(B) from and after the date that Holdings delivers a written notice to the Administrative Agent that it intends to exercise its
cure right under this Section 8.05 (a “Notice of Intent to Cure”) neither the Administrative Agent nor any Lender
may exercise any rights or remedies under Section 8.02 (or under
any other Loan Document) on the basis of any actual or purported
Event of Default under the covenant set forth in Section 7.11 with respect to the quarter for which a Notice of Intent
to Cure has been provided (and any other Default as a result thereof).
(b) (i) In
each period of four consecutive fiscal quarters, there shall be at least two fiscal quarters in which no Designated Equity Contribution
is made, (ii) no more than five Designated Equity Contributions may be made in the aggregate during the term of this
Agreementthe Revolving Credit Facility, (iii) the
amount of any Designated Equity Contribution shall be no more than the amount required to cause the
BorrowerHoldings to be in Pro Forma Compliance with
Section 7.11 for any applicable period and,
(iv) there shall be no pro forma reduction in Indebtedness with the proceeds of any Designated Equity Contribution for determining
compliance with Section 7.11 for the fiscal quarter with respect to which such Designated Equity Contribution was madedeemed
to be applied (the “Testing Quarter”); provided that to the extent such proceeds are actually applied
to prepay Indebtedness, such reduction may be credited in any subsequent fiscal quarter.
subsequent to the Testing Quarter and (v) to the extent
the proceeds of any Designated Equity Contribution remain on the balance sheet of Holdings and its Restricted Subsidiaries, such proceeds
in the form of cash and Cash Equivalents may be subtracted for the purposes of calculating Consolidated Total Net Debt in any fiscal
quarter subsequent to the Testing Quarter and (vi) other than as set forth in the proviso to clause (iv) and in clause (v) above,
no Designated Equity Contribution may be included for purposes of calculating any financial ratios other than compliance with the financial
covenant and shall not result in any adjustment to any “baskets” or other amounts other than the amount of Consolidated EBITDA
referred to in clause (a) above.
ARTICLE IX
Administrative Agent
and Other Agents
SECTION 9.01 Appointment
and Authorization of Agents.
(a) Each
Lender hereby irrevocably appoints, designates and authorizes each of the Administrative Agent and the Collateral Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably
incidental thereto. Without limiting the generality of the foregoing, the
Lenders hereby expressly authorize the Administrative Agent and
the Collateral Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured
Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents
and acknowledge and agree that any such action by any Agent shall bind the Lenders. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, neither the Administrative Agent nor the Collateral Agent shall have any duties
or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent or the Collateral Agent have or be deemed
to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent or the
Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the
other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable Law. Instead, 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) Each
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and each such L/C Issuer shall have all of the benefits and immunities (i) provided to the Agents in this Article IX
with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed
to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the
term “Agent” as used in this Article IX and in the definition of “Agent-Related Persons”
included such L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to such L/C
Issuer.
(c) Each
of the Secured Parties (by acceptance of the benefits of the Collateral Documents) hereby irrevocably appoints and authorizes the Collateral
Agent to act as the agent of (and to hold any security interest created by the Collateral 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. In this connection,
the Collateral Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02
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 IX (including Section 9.07, 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.
(d) Each
Lender and each other Secured Party (by acceptance of the benefits of the Collateral Documents) hereby (i) acknowledges that it
has received a copy of the Intercreditor Agreements, (ii) agrees that it will be bound by and will take no actions contrary to the
provisions of the Intercreditor Agreements to the extent then in effect, and (iii) authorizes and instructs the Collateral Agent
to enter into each Intercreditor Agreement as Collateral Agent and on behalf of such Lender or Secured Party.
(e) Except
as provided in Sections 9.09 and 9.11, the provisions of this Article IX are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third-party
beneficiary of any of such provisions.
SECTION 9.02 Delegation
of Duties.
Each of the Administrative
Agent and the Collateral Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes
of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any
rights and remedies thereunder) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The Administrative Agent, the Collateral Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Agent-Related Persons.
The exculpatory provisions of this Article shall apply to any such sub-agent and to the Agent-Related Persons of the Administrative
Agent, the Collateral Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication
of the Facilities as well as activities as Administrative Agent or Collateral Agent. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or
willful misconduct (as determined in the final non-appealable judgment of a court of competent jurisdiction).
SECTION 9.03 Liability
of Agents.
No Agent-Related Person shall
(a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the
final non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein),
or (b) be responsible in any manner to any Lender or Participant for any recital, statement, representation or
warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the Administrative Agent or the Collateral Agent under or
in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document, the existence, value or collectability of the Collateral, any failure to monitor or maintain
any part of the Collateral, or the perfection or priority of any Lien or security interest created or purported to be created under the
Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder
or thereunder. No Agent-Related Person shall be under any obligation to any Lender or pParticipant
to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement
or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof. Notwithstanding
the foregoing, neither the Administrative Agent nor the Collateral Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent or Collateral Agent (as applicable) is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents); provided that the Administrative Agent or Collateral Agent (as applicable) shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent or Collateral Agent (as applicable) to
liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in
violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property
of a Defaulting Lender in violation of any Debtor Relief Law.
SECTION 9.04 Reliance
by Agents.
Each Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail message, statement or other document
or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such
Agent. Each Agent shall be fully justified in failing or refusing to take any action under any Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the Required Lenders (or such greater number of Lenders as may
be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
SECTION 9.05 Notice
of Default.
The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall
have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such
notice is a “notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such notice. The
Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders (or, if a
Financial Covenant Event of Default occurs and is continuing and prior to the expiration of the Term Loan Standstill Period, the Required
Revolving Credit Lenders under the Revolving Credit Facility only, and in such case only with respect to the Revolving Credit Commitments,
Revolving Credit Loans, Swing Line Loans, L/C Obligations, Letters of Credit and L/C
Credit Extensions) in accordance with Article VIII; provided that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.
SECTION 9.06 Credit
Decision; Disclosure of Information by Agents.
Each Lender acknowledges that
no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent
to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to each Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its own appraisal of,
and investigation into, the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness
of the Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein,
such Agent shall not have any duty or responsibility to provide any Lender 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 Affiliates
which may come into the possession of any Agent-Related Person.
SECTION 9.07 Indemnification
of Agents.
Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed
by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so) acting as an Agent, pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related
Person’s own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent
jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or
percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section 9.07; provided, further, that any obligation to indemnify an L/C Issuer pursuant
to this Section 9.07 shall be limited to Revolving Credit Lenders only. In the case of any investigation, litigation or proceeding
giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding
is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse each of the Administrative
Agent and the Collateral Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent or the Collateral Agent, as the case may be, in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Administrative Agent or the Collateral Agent, as the case may be, is not reimbursed for such expenses by or on
behalf of the Loan Parties and without limiting their obligation to do so. The undertaking in this Section 9.07 shall survive
termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent or the
Collateral Agent, as the case may be.
SECTION 9.08 Agents
in Their Individual Capacities.
Credit
SuisseUBS AG,
Cayman Islands Branch and its,
UBS AG, Stamford Branch and their respective Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Borrower and its respective Affiliates as though Credit SuisseUBS
AG, Cayman Islands Branch and
UBS AG, Stamford Branch were not the Administrative Agent, the Collateral Agent, Swing Line Lender
or an L/C Issuer, as applicable, hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Credit
SuisseUBS AG,
Cayman Islands Branch or its,
UBS AG, Stamford Branch or their respective Affiliates may receive information regarding the Borrower or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliate) and acknowledge that neither
the Administrative Agent nor the Collateral Agent shall be under any obligation to provide such information to them. With respect to
its Loans, Credit SuisseUBS
AG, Cayman Islands Branch and its,
UBS AG, Stamford Branch and their respective Affiliates shall have the same rights and powers under this Agreement as any other
Lender and may exercise such rights and powers as though it were not the Administrative Agent, the Collateral Agent,
Swing Line Lender or an L/C Issuer, as applicable, and
the terms “Lender” and “Lenders” include Credit SuisseUBS
AG, Cayman Islands Branch in itsand
UBS AG, Stamford Branch in their individual capacityies.
Any successor to Credit SuisseUBS
AG, Cayman Islands Branch as the Administrative Agent or UBS
AG, Stamford Branch as the Collateral Agent shall also have the rights attributed to Credit SuisseUBS
AG, Cayman Islands Branch and
UBS AG, Stamford Branch under this Section 9.08.
SECTION 9.09 Successor
Agents.
Each of the Administrative
Agent and the Collateral Agent may resign as the Administrative Agent or the Collateral Agent, as applicable upon thirty (30) days’
notice to the Lenders and the Borrower and if either the Administrative Agent or the Collateral Agent is a Defaulting Lender, the Borrower
may remove such Defaulting Lender from such role upon ten (10) days’ notice to the Lenders. If the Administrative Agent or
the Collateral Agent resigns under this Agreement or is removed by the Borrower, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the Borrower at all
times other than during the existence of an Event of Default under Sections 8.01(f) or (g) (which consent of
the Borrower shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation
or removal of the Administrative Agent or the Collateral Agent, as applicable, the Administrative Agent or the Collateral Agent, as applicable,
in the case of a resignation, and the Borrower, in the case of a removal may appoint, after consulting with the Lenders and the Borrower
(in the case of a resignation), a successor agent from among the Lenders;
provided that, for the avoidance of doubt, the
resignation or removal, as applicable of the Administrative Agent shall be effective on such date regardless as to whether a successor
agent has been pointed by such date. Upon the acceptance of its appointment as successor agent hereunder, the Person acting as
such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent or retiring Collateral Agent
and the term “Administrative Agent” or “Collateral Agent” shall mean such successor administrative agent or collateral
agent and/or Supplemental Agent, as the case may be, and the retiring Administrative Agent’s or Collateral Agent’s appointment,
powers and duties as the Administrative Agent or Collateral Agent shall be terminated. After the retiring Administrative Agent’s
or the Collateral Agent’s resignation or removal hereunder as the Administrative Agent or Collateral Agent, the provisions of this
Article IX and the provisions of Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Administrative Agent or Collateral Agent under this Agreement. If no successor agent has
accepted appointment as the Administrative Agent or the Collateral Agent by the date which is thirty (30) days following the retiring
Administrative Agent’s or Collateral Agent’s notice of resignation or ten (10) days following the Borrower’s notice
of removal, the retiring Administrative Agent’s or the retiring Collateral Agent’s resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the Administrative Agent or Collateral Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for above. Upon the acceptance of any appointment as the
Administrative Agent or Collateral Agent hereunder by a successor and upon the execution and filing or recording of such financing statements,
or amendments thereto, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request,
in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise
ensure that Section 6.11 is satisfied, the Administrative Agent or Collateral Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent or Collateral Agent, and
the retiring Administrative Agent or Collateral Agent shall be discharged from its duties and obligations under the Loan Documents. After
the retiring Administrative Agent’s or Collateral Agent’s resignation hereunder as the Administrative Agent or the Collateral
Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent or the Collateral Agent.
SECTION 9.10 Administrative
Agent May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower or the Collateral Agent) shall be (to the fullest extent permitted by mandatory provisions of applicable
Law) entitled and empowered, by intervention in such proceeding or otherwise:
(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and
all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Lenders, the Collateral Agent and the Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Collateral Agent and the Administrative Agent and their respective agents and counsel
and all other amounts due to the Lenders, the Collateral Agent and the Administrative Agent under Sections 2.03(h) and (i),
2.09, 10.04 and 10.05) allowed in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, curator, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make
such payments to the Administrative Agent or the Collateral Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders, to pay to the Administrative Agent or the Collateral Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the
Administrative Agent or the Collateral Agent under Sections 2.09, 10.04 and 10.05.
Nothing contained herein shall
be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
SECTION 9.11 Collateral
and Guaranty Matters.
TheEach
Lenders (including in its capacity as a counterparty to a Secured Hedge Agreement
or Treasury Services Agreement) and each other Secured Party by its acceptance
of the Collateral Documents irrevocably agrees:
(a) that
any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any Loan Document shall be automatically
released (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than (x) obligations
under Secured Hedge Agreements and Treasury Services Agreements not yet due and payable and (y) contingent indemnification obligations
not yet accrued and payable) and the expiration or termination or cash collateralization of all Letters of Credit (or
if such Letters of Credit have been backstopped by letters of credit
reasonably satisfactory to the applicable L/C Issuers or deemed reissued
under another agreement reasonably satisfactory to the applicable L/C Issuers), (ii) at the time the property subject to
such Lien is Disposed or to be Disposed as part of or in connection with any Disposition permitted hereunder or under any other Loan
Document to any Person other than a Person required to grant a Lien to the Administrative Agent or the Collateral Agent under the Loan
Documents (or, if such transferee is a Person required to grant a Lien to the Administrative Agent or
the Collateral Agent on such asset, at the option of the applicable
Loan Party, such Lien on such asset may still be released in connection with the transfer so long as (y) the transferee grants a
new Lien to the Administrative Agent or Collateral Agent on such asset substantially concurrently with the transfer of such asset and
(z) the priority of the new Lien is the same as that of the original Lien and the Lien of the Secured Parties on such asset is not
impaired or otherwise adversely affected by such release and granting of such new Lien as reasonably determined by the Administrative
Agent),, (iii) subject to Section 10.01,
if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, (iv) to the extent such asset
constitutes an Excluded Asset or (v) if the property subject to such Lien is owned by a Guarantor, upon release of such Guarantor
from its obligations under its Guaranty pursuant to clause (c) below; provided
that, without limitation to the operation of the automatic releases described in this clause (a), a
certificate of a Responsible Officer, delivered at the option of
the Borrower, to the Administrative Agent with respect to any release described in this clause (a) stating
that the Borrower has determined in good faith that such release
satisfies the foregoing requirements shall be conclusive evidence
that such release satisfies the foregoing requirement and such automatic
release has occurred (and the Administrative Agent and the Collateral Agent may rely conclusively on such certificate without further
inquiry);
(b) Thatthat
upon the request of the Borrower, the Administrative Agent and the Collateral Agent mayshall
release or subordinate any Lien on any property granted to or held by the Administrative Agent or the Collateral Agent under any
Loan Document to the holder of any Lien on such property that is permitted by Sections 7.01 (b),
(e), (f), (g), (i), (j), (k), (l), (n), (o), (p), (q), (r), (s), (t), (u) or,
(w) (in the case of clause (w), to the extent required by the terms of the obligations secured by such Liens),
(x), (z), (aa), (ff), (gg), (hh), (ii) (to the extent the applicable Liens are securing any Permitted Refinancing directly or indirectly
permitted under Section 7.03(b)), (jj), (kk), (ll) or (mm) pursuant to documents reasonably acceptable to the Administrative
Agent;
(c) Thatthat
any Subsidiary Guarantor shall be automatically released from its obligations under the Guaranty if such Person ceases to be a
Restricted Subsidiary or becomes an Excluded Subsidiary as a result of a transaction or designation permitted hereunder; provided
that no such release shall occur if such Guarantor continues to be a guarantor in respect of the Senior Notes,
the ABL Credit Agreement (other than Canadian Subsidiaries which guarantee Indebtedness under the ABL Credit Agreement)
or any Junior Financing with a principal amount in excess of the Threshold Amount; andprovided,
further, that, without limitation of the operation of the automatic releases described in this clause (c), a certificate of a
Responsible Officer delivered at the option of the Borrower, to the Administrative Agent with respect to any such automatic release stating
that such Subsidiary Guarantor has ceased to be a Restricted Subsidiary or has become an Excluded Subsidiary as a result of a transaction
or designation permitted hereunder, as the case may be, shall be conclusive evidence that such release satisfies the foregoing requirement
and such automatic release has occurred (and the Administrative Agent and the Collateral Agent may rely conclusively on such certificate
without further inquiry); and
(d) the
Collateral Agent may, without any further consent of any Lender, enter into (i) a ABL Intercreditor
Agreement or First Lien Intercreditor Agreement with the collateral agent or other representatives of holders of Permitted Ratio Debt
that is intended to be secured on a pari passu basis with the Liens securing the Obligations and/or (ii) a Junior Lienany
Intercreditor Agreement with the collateral agent or other representatives of the holders of Indebtedness permittednot
prohibited under Section 7.03 that is intended to be secured on a junior basis to
the Liens securing the Obligations, in each case, where such Indebtedness isand
secured by Liens permittednot
prohibited under Section 7.01. The (and
the Collateral Agent may rely exclusively on a certificate of a Responsible Officer of the Borrower as to whether any such other
Liens are permittednot
prohibited). Any First Lien Intercreditor Agreement,
ABL Intercreditor Agreement or Junior Lien Intercreditor Agreement entered into by the Collateral Agent in accordance
with the terms of this Agreement shall be binding on the Secured Parties.
Subject
to the following paragraph, each Secured Party hereby authorizes and directs the
Administrative Agent and the Collateral Agent to deliver any documentation
reasonably requested by the Borrower to evidence any such release in connection with the foregoing clauses (a) through (d).
Upon request by the
Administrative Agent or the Collateral Agent at any time, the Required Lenders will confirm in writing the Administrative
Agent’s or the Collateral Agent’s authority to release or subordinate its interest in particular types or items of
property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11; provided
that absent such confirmation in writing from the Required Lenders, the act of the Administrative Agent or the Collateral Agent
making such request shall not prohibit the Administrative Agent or the Collateral Agent from releasing or subordinating its
interests if it otherwise conclusively relies on a certificate of the Borrower. In each case as specified in this
Section 9.11, the Administrative Agent or the Collateral Agent will promptly upon the request of the Borrower (and each
Lender irrevocably authorizes and requires the Administrative
Agent and the Collateral Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents
as the Borrower may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and
security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under
the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11 (and the
Administrative Agent and the Collateral Agent may rely conclusively on a certificate of a Responsible Officer of the Borrower to
that effect provided to it by any Loan Party upon its reasonable request without further inquiry). Any execution and delivery of
documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent or the Collateral
Agent. Each Lender and each other Secured Party agrees that it will
take such action and execute any such documents as may be reasonably requested by the Borrower, at the Borrower’s sole cost
and expense, in connection with any of the foregoing releases or any such subordination and irrevocably authorizes and requires the
Administrative Agent and the Collateral Agent to take such action and execute any such document and consents to such reliance by the
Administrative Agent or the Collateral Agent on a
certificate from a Responsible Officer of the Borrower certifying as the satisfaction of any of the requirements in this
Section 9.11. For the avoidance of doubt, no release of Collateral or Guarantors effected in the manner permitted by
this Section 9.11 shall require the consent of any holder of obligations under Secured Hedge Agreement or any Treasury Services
Agreements.
SECTION 9.12 Other
Agents; Arrangers and Managers.
None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a “joint bookrunner,” “joint
lead arranger” or “co-manager” shall have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
SECTION 9.13 Withholding
Tax Indemnity.
To the extent required by any
applicable Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding
Tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including, without limitation,
because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent
of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective), such Lender shall, within
10ten days after
written demand therefor, indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already
been reimbursed by the Borrower or any Guarantor pursuant to Section 3.01
and Section 3.04 and without limiting or expanding the obligation of the Borrower or
any Guarantor to do so) for all amounts paid, directly or indirectly, by the 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 the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent
to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any
amount due the Administrative Agent under this Section 9.13. The agreements in this Section 9.13 shall
survive the resignation and/or replacementor
removal of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction
or discharge of all other Obligations. For the avoidance of doubt, the term “Lender” for purposes of this Section 9.13
shall include each L/C Issuer and Swing Line Lender.
SECTION 9.14 Appointment
of Supplemental Agents.
(a) It
is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any Law of any jurisdiction denying
or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is
recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case the Administrative Agent or the Collateral Agent deems that by reason of any present or future
Law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents
or take any other action which may be desirable or necessary in connection therewith, the Administrative Agent and the Collateral Agent
are hereby authorized to appoint an additional individual or institution selected by the Administrative Agent or the Collateral Agent
in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral agent, administrative sub-agent or administrative
co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Agent”
and collectively as “Supplemental Agents”).
(b) In
the event that the Collateral Agent appoints a Supplemental Agent with respect to any Collateral, (i) each and every right, power,
privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed
to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Agent to the extent, and
only to the extent, necessary to enable such Supplemental Agent to exercise such rights, powers and privileges with respect to such Collateral
and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary
to the exercise or performance thereof by such Supplemental Agent shall run to and be enforceable by either the Collateral Agent or such
Supplemental Agent, and (ii) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer
to the Administrative Agent shall inure to the benefit of such Supplemental Agent and all references therein to the Collateral Agent
shall be deemed to be references to the Collateral Agent and/or such Supplemental Agent, as the context may require.
(c) Should
any instrument in writing from any Loan Party be required by any Supplemental Agent so appointed by the Administrative Agent or the Collateral
Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, such Loan Party
shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Administrative Agent or the Collateral
Agent. In case any Supplemental Agent, or a successor thereto, shall die, become incapable of acting, resign or be removed, all the rights,
powers, privileges and duties of such Supplemental Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative
Agent until the appointment of a new Supplemental Agent.
SECTION 9.15 Certain
ERISA Matters.
(a) Each
Revolving Credit Lender and each Initial B-5 Dollar Term 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 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, all of the conditions of which are satisfied,
(iii) (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE
84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate
in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84--14 and (D) to the best knowledge of such Lender, the requirements
of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, the Borrower, and such Lender,
which agreement will not be unreasonably withheld.
(b) In
addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Revolving
Credit Lender or an Initial B-5 Dollar Term Lender or (2) a Revolving Credit Lender or Initial B-5 Dollar Term Lender has provided
another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender
further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the
date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative
Agent each Lead Arranger and their respective Affiliates, that none of the Administrative Agent, any Lead Arranger or any of their respective
Affiliates 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 the Administrative Agent under this Agreement, any Loan Document or any documents related
hereto or thereto).
SECTION 9.16 Erroneous
Payments.
(a) With
respect to any Revolving Credit Lender or Initial B-5 Dollar Term Lender, if the Administrative Agent notifies such Lender, or any Person
who has received funds on behalf of a Lender (any such Lender or other recipient, but in any event excluding the Loan Parties and their
Affiliates (other than any Affiliated Lenders), a “Payment Recipient”) that the Administrative Agent has determined
in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)), that any funds received
by such Payment Recipient from the Administrative Agent or any of
its Affiliates were erroneously transmitted to, or otherwise erroneously
or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any
such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually
and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)),
such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient
and held in trust for the benefit of the Administrative Agent, and such Lender 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 one Business Day thereafter, return
to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same
day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous
Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to
the Administrative Agent in same day funds at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive,
absent manifest error.
(b) Without
limiting the immediately preceding clause (a), each Payment Recipient hereby further 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 the
Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified
in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment,
prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or
(z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)
in each case:
(i) an
error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately
preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such
Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative
Agent of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Administrative Agent
pursuant to this Section 9.16(b).
(c) Each
Lender or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to
such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender
or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under
the indemnification provisions of this Agreement.
(d) In
the event an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor
by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment
(or portion thereof) (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 the Administrative Agent’s request
to such Lender at any time, (i) 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 (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted
Class, the “Erroneous Payment Deficiency Assignment”) at par, plus any accrued and unpaid interest (with the
assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the 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 electronic platform approved by the Administrative Agent as to which the 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 the Administrative Agent, (ii) the Administrative
Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition,
the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment
Deficiency Assignment and the assigning Lender shall cease to be a Lender 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 any applicable
Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent may reflect in the Register its ownership
interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The 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 or L/C Issuer shall be reduced by the net proceeds of the sale of such Loan (or portion
thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or L/C Issuer (and/or against
any recipient that receives funds on its respective behalf). 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. In addition,
each party hereto agrees that, except to the extent that the Administrative Agent has sold a Loan (or portion thereof) acquired pursuant
to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the
Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, L/C Issuer or Secured
Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
(e) The
parties hereto agree that an Erroneous Payment shall not be deemed to pay, prepay, repay, discharge or otherwise satisfy any Obligations
owed by the Borrower or any other Loan Party, except, in each case,
to the extent such Erroneous Payment is, and solely with respect
to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from
the Borrower or any other Loan Party for the purpose of making such
Erroneous Payment.
(f) 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 the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based
on “discharge for value” or any similar doctrine.
(g) Each
party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or removal of the Administrative
Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment,
satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(h) Notwithstanding
anything to the contrary herein or in any other Loan Document, no Loan Party nor any of their respective Affiliates (other than any Affiliated
Lender who is a Payment Recipient) shall have any obligations or liabilities directly or indirectly arising out of this Section 9.16
in respect of any Erroneous Payment (other than having consented to the assignment referenced in Section 9.16(d) above).
ARTICLE X
Miscellaneous
SECTION 10.01 Amendments,
Etc.
Except
as otherwise set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no
consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders, or by the
Administrative Agent with the consent of the Required Lenders, and such Loan Party (with
an executed copy thereof promptly delivered to the Administrative Agent if not otherwise a party thereto) and each such waiver
or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that any amendment
or waiver contemplated in clauses (g) or (ij)
below, shall only require the consent of such Loan Party and the Required Revolving Credit Lenders,
Required Class Lenders or the Required Facility Lenders under the applicable Class or
Facility, as applicable; provided, further, that no such amendment, waiver or consent shall:
(a) extend
or increase the Commitment of any Lender without the written consent of each Lender holding such Commitment (it being understood that
a waiver of any condition precedent or of any Default, Event of Default,
mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment
of any Lender);
(b) postpone
any date scheduled for, or reduce or forgive the amount of, any payment of principal or interest under Sections 2.07
or 2.08 without the written consent of each Lender holding the applicable Obligationdirectly
and adversely affected thereby (it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment
of the Term Loans or waiver of any Default or Event of Default shall
not constitute a postponement of any date scheduled for the payment of principal or interest and it being understood that any change
to the definition of “Consolidated First Lien Net Leverage Ratio,” “Consolidated Secured Net Leverage Ratio,”
or “Consolidated Total Net Leverage Ratio,”
or “Consolidated Interest Coverage Ratio” or, in each case, in the component definitions thereof and/or
Section 2.14(e)(iii) shall not constitute a reduction or forgiveness in any rate of interest);
(c) reduce
or forgive the principal of, or the rate of interest specified herein on, any Loan, or L/C Borrowing, or (subject to clause (iii) of
the third proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan
Document (or changeextend
the timing of payments of such fees or other amounts) without the written consent of each Lender holding
such Loan, L/C Borrowing or to whom such fee or other amount is oweddirectly
and adversely affected thereby (it being understood that any change to the definition of “Consolidated First Lien Net
Leverage Ratio,” “Consolidated Secured Net Leverage Ratio” or “Consolidated Total Net Leverage
Ratio,” or “Consolidated Interest Coverage Ratio”
or, in each case, in the component definitions thereof and/or Section 2.14(e)(iii) or
any waiver of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness in any rate
of interest); provided that only the consent of the Required Lenders shall be necessary to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;
(d) change
any provision of (i) Sections
8.04 or,
(ii) this Section 10.01 or (iii) the
definition of “Required Revolving Credit Lenders,” “Required Lenders,” “Required Facility
Lenders,” “Required Class Lenders” or any other provision specifying the number of Lenders or portion
of the Loans or Commitments required to take any action under the Loan Documents, without the written consent of each Lender (or
Lenders of any Class, as the case may be) directly and adversely
affected thereby;
(e) other
than in connection with a transaction permitted under Sections 7.04 or 7.05 or
pursuant to any Intercreditor Agreement, release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender;
(f) other
than in connection with a transaction permitted under Sections 7.04 or 7.05 or
pursuant to any Intercreditor Agreement, release all or substantially all of the aggregate value of the Guaranty, without the
written consent of each Lender;
(g) (1) waive
any condition set forth in Section 4.02 as to any Credit Extension under one or more Revolving Credit Facilities
or (2) amend, waive or otherwise modify any term or provision which directly affects Lenders under one or more Revolving
CreditClasses or Facilities,
as applicable, and does not directly and adversely affect
Lenders under any other Class or Facility,
as applicable (including any waiver, amendment or modification of Section 7.11 or the definition of “Consolidated
First Lien Net Leverage Ratio” or the component definitions thereof (but only to the extent of any such component definition’s
effect on the definition of “Consolidated First Lien Net Leverage Ratio” for the purposes of Section 7.11)),
in each case, without the written consent of the Required FacilityClass Lenders
under such applicable Revolving Credit Facility or Facilities (and in the case of multiple Facilities
which are affected, with respect to any such Facility, such consent shall be effected by the Required Facility Lenders of such Facility);
provided, however, that the waivers described in this clause (g) shall not require the consent of any Lenders other
than theeach affected Class or Required Facility
Lenders under sucheach
affected Facility or Facilities,
as applicable;
(h) amend,
waive or otherwise modify the portion of the definition of “Interest Period” that provides for one, two, three or six month
intervals to automatically allow intervals in excess of six months, without the written consent of each Lender affected thereby; or
(h) [reserved];
(i) other
than (x) in connection with the incurrence of any debtor-in-possession financing and (y) the subordination of any Lien permitted
under Section 9.11(b), contractually subordinate the Liens on the Collateral securing the Obligations to any other Lien on the Collateral
securing any other Indebtedness for borrowed money incurred by any Loan Party (the “Priority Indebtedness”) without
the written consent of each directly and adversely affected Lender, except to the extent such directly and adversely affected Lender
is offered a reasonable, bona fide opportunity to participate on a no less than pro rata basis in any portion of such Priority Indebtedness
that is made available, which offer shall remain open to such directly and adversely affected Lender for a period of not less than five
Business Days; provided, however, that if any such
directly and adversely affected Lender does not accept an offer to provide its pro rata share of the portion of such Priority Indebtedness
made available within the time specified for acceptance of such offer being made, such directly and adversely affected Lender shall be
deemed to have declined such offer; and
(ij) amend,
waive or otherwise modify any term or provision (including the availability and conditions to funding under Section 2.14
(but not the conditions to implementing Incremental Term Loans or Incremental Revolving Credit Commitments pursuant to Section 2.14(d)(v) and
Section 2.14(e) (other than Section 2.14(e)(iii))
with respect to Incremental Term Loans and Incremental Revolving Credit Commitments, under Section 2.15 with respect
to Refinancing Term Loans and Other Revolving Credit Commitments and under Section 2.16 with respect to Extended Term
Loans or Extended Revolving Credit Commitments and, in each case, the rate of interest applicable thereto) which directly affects Lenders
of one or more Incremental Term Loans, Incremental Revolving Credit Commitments, Refinancing Term Loans, Other Revolving Credit
Commitments, Extended Term Loans or Extended Revolving Credit Commitments and does not directly and
adversely affect Lenders under any other Facility, in each case, without the written consent of the Required Facility Lenders
under such applicable Incremental Term Loans, Incremental Revolving Credit Commitments, Refinancing Term Loans, Other Revolving
Credit Commitments, Extended Term Loans or Extended Revolving Credit Commitments (and in the case of multiple Facilities which are directly
and adversely affected, with respect to any such Facility, such consent shall be effected by the Required Facility Lenders of
such Facility); provided, however, that the waivers described in this clause (ij)
shall not require the consent of any Lenders other than the Required Facility Lenders under such applicable Incremental Term Loans, Incremental
Revolving Credit Commitments, Refinancing Term Loans, Other Revolving Credit Commitments, Extended Term Loans or Extended Revolving Credit
Commitments, as the case may be;
and
provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by
each L/C Issuer in addition to the Lenders required above, affect the rights or duties of an L/C Issuer under this Agreement or any Letter
of Credit Issuance Request relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall,
unless in writing and signed by a Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of such Swing Line Lender under this Agreement; provided, however, that this Agreement may be amended to adjust
the borrowing mechanics related to Swing Line Loans with only the written consent of the Administrative Agent, the Swing Line Lender
and the Borrower so long as the obligations of the Revolving Credit Lenders are not affected thereby; (iii) no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent or the Collateral Agent, as applicable, in
addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent
or the Collateral Agent, as applicable, under this Agreement or any other Loan Document; (ivprovided
that any removal or replacement of the Administrative Agent or the Collateral Agent in accordance with the provisions of Section 9.09
shall not require the consent of the Administrative Agent or the Collateral Agent and (iii) Section 10.07(hi)
may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being
funded by an SPC at the time of such amendment, waiver or other modification; and (v) the consent
of Lenders holding more than 50% of any Class of Commitments or Loans shall be required with respect to any amendment that by its
terms adversely affects the rights of such Class in respect of payments or Collateral hereunder in a manner different than such
amendment affects other Classes. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires
the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders),
except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and
(y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms materially
and adversely affects any Defaulting Lender (if such Lender were not a Defaulting Lender) to a greater extent than other affected Lenders
shall require the consent of such Defaulting Lender.;
provided
further that
any amendment, waiver or consent with respect to any term or provision which only takes effect after the maturity of certain Classes
of Loans or Commitments and which is in favor of a Class of Lenders holding Loans or Commitments maturing after the maturity of
such Classes of Lenders will only require the written consent of the Required Class Lenders holding such later maturing Loans or
Commitments.
Notwithstanding the foregoing,
no Lender consent is required to effect the entry into any Intercreditor
Agreement by the Administrative Agent or the Collateral Agent or
to effect any amendment or supplement to any First Lien Intercreditor Agreement,
ABL Intercreditor Agreement, any Junior Lien Intercreditor Agreement or other intercreditor agreement or arrangement
permitted under this Agreement that is for the purpose of adding the holders of Permitted First Priority
Refinancing Debt, or Permitted Junior Lien Refinancing DebtOther
Debt Representatives or otherwise, as expressly contemplated by the terms of such First Lien
Intercreditor Agreement, ABL Intercreditor Agreement, such Junior Lien Intercreditor Agreement or such other intercreditor
agreement or arrangement permitted under this Agreement, as applicable,
pursuant to the terms thereof (it being understood that any such amendment or supplement may make such other changes to the applicable
intercreditor agreement as, in the good faith determination of the Administrative AgentBorrower,
are required to effectuate the foregoing and provided that such other changes are not adverse,
in any material respect, to the interests of the Lenders); provided, further, that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent.
Notwithstanding
the foregoing, any provision of this Agreement may be amended, amended and restated, supplemented or waived with the written consent
of the Required Lenders (or the Required Facility Lenders or Required Class Lenders, as applicable), the Administrative Agent (but
only to the extent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent), the Borrower
and without the consent of any other Lenders unless specifically stated in clauses (a) through (f) of this Section 10.01
to require the consent of a greater percentage of Lenders.
Notwithstanding the foregoing,
this Agreement and any other Loan Document may be amended solely with the consent of the Administrative Agent and the Borrower without
the need to obtain the consent of any other Lender if such amendment is delivered in order (xA)
to correct or cure ambiguities, errors, omissions or defects, (yB)
to effect administrative changes of a technical or immaterial nature or,
(zC) to fix
incorrect cross references or similar inaccuracies in this Agreement or the applicable Loan Document and,
, (D) solely to add benefit to one or more existing
Facilities, including but not limited to, increase in margin, interest rate floor, prepayment premium, call protection and reestablishment
of or increase in amortization schedule, in order to cause any Incremental Facility (including,
for the avoidance of doubt, any delayed draw commitments) to be fungible
with any existing Facility, (E) to add any financial covenant or other terms for the benefit of all Lenders or any Class of
Lenders pursuant to the conditions imposed on the incurrence of any Indebtedness set forth elsewhere in this Agreement, (F) solely
to make the terms of this Agreement or any
other Loan Document more restrictive (or less favorable) to Holdings and its Restricted Subsidiaries (as determined by the Borrower)
and (G) to implement a Successor Alternative Benchmark Rate and in each case, such amendment shall become effective without
any further action or the consent of any other party to any Loan Document if the same is not
objected to in writing by the Required Lenders within five (5) Business Days following receipt of
notice thereof. The. In addition to the foregoing,
the Collateral Documents and related documents in connection with this Agreement and the other Loan Documents may be in a form
reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with the
consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such
amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to correct
or cure ambiguities, omissions, mistakes or defects or (iii) to cause such Collateral Documents or other document to be consistent
with this Agreement and the other Loan Documents and, in each case, such amendment shall become effective without any further action
or the consent of any other party to any Loan Document if the same(provided
that, solely to the extent reasonably requested by the Administrative Agent, such amendment shall not become effective unless such
amendment is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice
thereof).
Notwithstanding anything in
this Agreement or any other Loan Document to the contrary, the Borrower and,
if applicable, the Administrative Agent may enter into any Incremental Amendment in accordance with Section 2.14,
any Refinancing Amendment in accordance with Section 2.15 and any Extension Amendment in accordance with Section 2.16
and such Incremental Amendments, Refinancing Amendments and Extension Amendments shall be effective to amend the terms of this Agreement
and the other applicable Loan Documents, in each case, without any further action or consent of any other party to any Loan Document.
SECTION 10.02 Notices
and Other Communications; Facsimile Copies.
(a) General.
Unless otherwise expressly provided herein, all notices and other communications provided for hereunder or under any other Loan Document
shall be in writing (including by facsimile transmission or electronic mail).
All such written notices shall be mailed, faxed or delivered to the applicable address,
facsimile number or electronic mail address, and all notices and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) subject
to Section 10.07(q), if to the Borrower (or any other Loan Party) or the Administrative Agent, the Collateral Agent,
or an L/C Issuer or
the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such
Person on Schedule 10.02(a) or to such other address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if
to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire
or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice
to the Borrower, the Administrative Agent, the Collateral Agent, each L/C Issuer and the Swing Line
Lender.
All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto
and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if
delivered by mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone; and (DC)
if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(cd)),
when delivered; provided that notices and other communications to the Administrative Agent, the Collateral Agent, and
an L/C Issuer and the Swing Line Lender pursuant to Article II shall
not be effective until actually received by such Person. In no event shall a voice mail message nor
mail be effective as a notice, communication or confirmation hereunder. Any notice not given during normal business hours for
the recipient shall be deemed to have been given at the opening of business on the next Business Day for the recipient.
(b) Effectiveness
of Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile or other electronic communication.
The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually signed
originals and shall be binding on all Loan Parties, the Agents and the Lenders.
(c) Reliance
by Agents and Lenders. The Administrative Agent, the Collateral Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower
in the absence of gross negligence or willful misconduct as determined in a final and non-appealable judgment by a court of competent
jurisdiction. All telephonic notices to the Administrative Agent or Collateral Agent may be recorded by the Administrative Agent or the
Collateral Agent, and each of the parties hereto hereby consents to such recording.
(d) Electronic
Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by FpML
messaging and Internet or intranet websites pursuant to procedures approved by the Administrative Agent acting reasonably; provided that
the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuer, as applicable,
has notified the Administrative Agent that it is incapable of receiving notices under such Article by such communication. The Administrative
Agent, the L/C Issuers or the Borrower may each, in its discretion,
agree to accept notices and other communications to it hereunder by FpML messaging and Internet or intranet websites pursuant to procedures
approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative
Agent otherwise prescribes, notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address of notification that such notice or communication is available and identifying
the website address therefor.
SECTION 10.03 No
Waiver; Cumulative Remedies.
No failure by any Lender or
the Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power
or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by Law.
SECTION 10.04 Attorney
Costs and Expenses.
The Borrower agrees (a) if
the Closing Date occurs, to pay or reimburse the Administrative Agent, the Collateral Agent,
the L/C Issuers and the Lead Arrangers for all reasonable and documented out-of-pocket costs and expenses incurred in connection
with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver,
consent or other modification of the provisions hereof and thereof (whether or not the transactions
contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby
and thereby (including allbut
limited, (i) in the case of Attorney Costs, which shall be limited to Cahill Gordon &
Reindelto Davis Polk & Wardwell LLP and
one local counsel as reasonably necessary in each relevant jurisdiction material to the interests of the Lenders taken as a whole and
(ii) in the case of any other advisors or professionals, solely to the extent consented to by the Borrower in its sole discretion)
and (b) from and after the Closing Date, to pay or reimburse the Administrative Agent, the Collateral Agent, the Lead Arrangers
and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of any rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and
including all respectivebut limited (i) in the case
of Attorney Costs which shall be limited to Attorney Costs,
of one counsel to the Administrative Agent and the Lead Arrangers (and one local counsel as reasonably necessary in each relevant
jurisdiction material to the interests of the Lenders taken as a whole) and
(ii) in the case of any other advisors or professionals, solely to the extent consented to by the Borrower in its sole discretion).
The foregoing costs and expenses shall include all reasonable search, filing, and
recording and title insurance charges and fees related thereto, and other reasonable
and documented out-of-pocket expenses incurred by any Agent. The agreements in this Section 10.04 shall survive the termination
of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid
within thirty (30) days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail including,
if requested by the Borrower and to the extent reasonably available, backup documentation supporting such reimbursement request; provided
that with respect to the Closing Date, all amounts due under this Section 10.04 shall be paid on the Closing Date solely
to the extent invoiced to the Borrower within three Business Days of the Closing Date. If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by
the Administrative Agent in its sole discretion. For the avoidance of doubt, this Section 10.04 shall not apply to Taxes,
except any Taxes that represent liabilities, obligations, losses, damages, penalties, claims, demands, actions, prepayments, suits, costs,
expenses and disbursements arising from any non-Tax claims.
SECTION 10.05 Indemnification
by the Borrower.
The Borrower shall indemnify
and hold harmless each Agent-Related Person, each Lead Arranger, each Lender,
each L/C Issuer and their respective Affiliates, and their respective officers, directors, employees, partners, agents, advisors
and other representatives of each of the foregoing (collectively the “Indemnitees”) from and against any and all liabilities
(including Environmental Liabilities), obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs but limited,
(i) in the case of legal fees and expenses, to the 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 for all Indemnitees taken as a whole in each relevant jurisdiction that is material to the interests of
the Lenders, and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction that
is material to each group of similarly situated affected Indemnitees and
(ii) in the case of any other advisors or professionals, solely to the extent consented to by the Borrower in its sole discretion)
of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way
relating to or arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom including any refusal by an L/C Issuer to honor a demand for
payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such
Letter of Credit or (c) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively,
the “Indemnified Liabilities”) in all cases, whether or not caused by or arising, in whole or in part, out of the
negligence of the Indemnitee; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any of
its Affiliates or their respective directors, officers, employees, partners, agents, advisors or other representatives, as determined
by a final non-appealable judgment of a court of competent jurisdiction, (y) a material breach of any obligations under any Loan
Document by such Indemnitee or of any of its Affiliates or their respective directors, officers, employees, partners, advisors or other
representatives, as determined by a final non-appealable judgment of a court of competent jurisdiction or (z) any dispute solely
among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as an aAgent
or arranger or any similar role or as a letter of credit issuer or swing line bankor
as a Lead Arranger under any Facility and other than any claims arising out of any act or omission of Holdings, the Borrower,
the Investors or any of their respectiveits
Affiliates). No Indemnitee shall be liable
for any damages arising from the use by others of any information or other materials obtained through IntraLinks
or other similar information transmission systems in connection with this Agreement, nor shall
any Indemnitee, Loan Party or any Subsidiary have any liability for any special, punitive, indirect
or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith
or therewith (whether before or after the Closing Date) (other than, in the case of any Loan Party, in respect of any such damages incurred
or paid by an Indemnitee to a third party and for any out-of-pocket
expenses); it being agreed that this sentence shall not limit the indemnification obligations of Holdings, the Borrower or any Subsidiary.
In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies,
such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, any Subsidiary
of any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise
a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents are consummated.
All amounts due under this Section 10.05 shall be paid within thirty (30) days after written demand therefor (together
with backup documentation supporting such reimbursement request); provided, however, that such Indemnitee shall promptly
refund the amount of any payment to the extent that there is a final judicial or arbitral determination that such Indemnitee was not
entitled to indemnification rights with respect to such payment pursuant to the express terms of this Section 10.05.
No
Agent-Related Person, Lead Arranger, Lender, or their respective Affiliates, or their respective officers, directors, employees, partners,
agents, advisors and other representatives of each of the foregoing (collectively the “Exculpated Persons”) shall
be liable for any damages arising from the use by others of any information or other materials obtained through SyndTrak,
Debtdomain, Roadshow Access (if applicable) or other similar information
transmission systems in connection with this Agreement, nor, to the
extent permissible under applicable Law, shall any Exculpated Person,
Loan Party or any Subsidiary have any liability for any special, punitive, indirect or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing
Date) (other than, in the case of any Loan Party, in respect of any such damages incurred or paid by an Exculpated
Person to a third party and for any out-of-pocket expenses in
each case subject to the indemnification provisions of this Section 10.05);
it being agreed that this sentence shall not limit the indemnification obligations of Holdings, the Borrower or any Subsidiary.
The agreements in this Section 10.05
shall survive the resignation or removal of the Administrative Agent or Collateral Agent, the replacement of any Lender, the termination
of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations. For the avoidance of doubt, this
Section 10.05 shall not apply to Taxes, except any Taxes that represent liabilities, obligations, losses, damages, penalties,
claims, demands, actions, prepayments, suits, costs, expenses and disbursements arising from any non-Tax claims.
SECTION 10.06 Payments
Set Aside.
To the extent that any payment
by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to
a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall, to the fullest extent possible
under provisions of applicable Law, be revived and continued in full force and effect as if such payment had not been made or such setoff
had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any
amount so recovered from or repaid by any Agent, plus interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or
payment.
SECTION 10.07 Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (except as permitted by Section 7.04) and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Assignee pursuant to an assignment made in accordance with
the provisions of Section 10.07(b) (such an assignee, an “Eligible Assignee”) and (A) in
the case of any Assignee that, immediately prior to or upon giving effect to such assignment, is an Affiliated Lender, Section 10.07(l),
(B) in the case of any Assignee that is Holdings or any of its Subsidiaries, Section 2.05(a)(v) or
Section 10.07(m), or (C) in the case of any Assignee that, immediately prior to or upon giving effect
to such assignment, is a Debt Fund Affiliate, Section 10.07(p), (ii) by way of participation in accordance
with the provisions of Section 10.07(f), (iii) by way of pledge or assignment of a security interest subject
to the restrictions of Section 10.07(hj)
or (iv) to an SPC in accordance with the provisions of Section 10.07(i) (and any other attempted
assignment or transfer by any party hereto shall be null and void); provided, however, that notwithstanding anything to
the contrary, (x) no Lender may assign or transfer by participation any of its rights or obligations hereunder to (i) any Person
that is a Defaulting Lender or a Disqualified Lender (it being understood that the Administrative Agent
shall have no obligation or duty to monitor or track whether anyor
an Affiliate or Approved Fund of such Disqualified Lender shall have become an assignee or Lender
hereunder), (ii)) (and any failure of the Borrower to respond
to any request for consent of assignment shall not cause such Person to cease to constitute a Disqualified Lender), (ii) a natural
Person or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person
or (iii) to Holdings, the Borrower or any of their respective Subsidiaries (except pursuant to Section 2.05(a)(v) or
Section 10.07(m)) and (y) no Lender may assign or transfer by participation
any of its rights or obligations under the Revolving Credit Facility or
Revolving Credit Exposure hereunder without the consent of the Borrower (not to be unreasonably withheld or,
delayed or conditioned, it being understood and agreed that the investment
objectives and/or history of any proposed Assignee or its Affiliates shall be a reasonable basis for Borrower to withhold consent)
unless (i) such assignment or transfer is by a Revolving Credit Lender to an Affiliate
of such assigning Revolving Credit Lender of similar creditworthiness
orto such assigning Revolving
Credit Lender (excluding any Affiliates or Approved Funds that are “distressed debt” funds or are otherwise engaged in the
making, purchasing, holding or otherwise investing in distressed commercial loans, bonds and other similar extensions of credit in the
ordinary course, which shall require the express written consent of the Borrower), (ii) an Event of Default under Section 8.01(a) or,
solely with respect to the Borrower, Section 8.01(f) has occurred and is continuing or
(iii) such assignment is by and among Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC; provided that
the Borrower shall be deemed to have consented to any assignment of Term Loans unless the Borrower shall have objected thereto within
fifteen (15) Business Days after a Responsible Officer of the Borrower havingthe
Persons identified in Section 10.07(q) have received the
written request therefor (other than to any Disqualified Lender or
any Affiliate or Approved Fund of such Disqualified Lender, which shall require the express written consent of the Borrower at all times).
Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(f) and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
If
any Loans or Commitments are assigned or participated (x) to a Disqualified Lender or (y) without complying with the notice
requirement under Section 10.07(q), then: (a) the Borrower may (i) terminate any Commitment of such person and prepay
any applicable outstanding Loans at a price equal to the lesser
of (x) the current trading price of the Loans, (y) par
and (z) the amount such person paid to acquire such Loans, in each case, without premium, penalty, prepayment fee or breakage, and/or
(ii) require such person to assign its rights and obligations to one or more Eligible Assignees at the price indicated above (which
assignment shall not be subject to any processing and recordation fee) and if such person does not execute and deliver to the Administrative
Agent a duly executed Assignment and Assumption reflecting such assignment within three Business Days of the date on which the assignee
Lender executes and delivers such Assignment and Assumption to such person, then such person shall be deemed to have executed and delivered
such Assignment and Assumption without any action on its part, (b) no such person shall receive any information or reporting provided
by the Borrower, the Administrative Agent or any Lender, (c) for purposes of voting, any Loans or Commitments held by such person
shall be deemed not to be outstanding, and such person shall have no voting or consent rights with respect to “Required Lender”
or class votes or consents, (d) for purposes of any matter requiring the vote or consent of each Lender affected by any amendment
or waiver, such person shall be deemed to have voted or consented to approve such amendment or waiver if a majority of the affected class
(giving effect to clause (c) above) so approves, and (e) such person shall not be entitled to any expense reimbursement or
indemnification rights under any Loan Documents (including Sections 10.04 and 10.05) and the Borrower expressly reserves all rights against
such person under contract, tort or any other theory and shall be treated in all other respects as a Defaulting Lender; it being understood
and agreed that the foregoing provisions shall only apply to a Disqualified Lender and not to any assignee of such Disqualified Lender
that becomes a Lender so long as such assignee is not a Disqualified
Lender or an affiliate thereof.
The
Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce,
compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative
Agent shall not (a) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender
or Participant is a Disqualified Lender or (b) have any liability with respect to or arising out of any assignment or participation
of Loans, or disclosure of confidential information, to any Disqualified Lender.
(b) (i)
Subject to Section 10.07(a) and the conditions set forth
in paragraph (b))(ii) below,
any Lender may assign to one or more assignees (“Assignees”) all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this Section 10.07(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it)
with the prior written consent (such consent not to be unreasonably withheld or,
delayed or conditioned) of:
(A) the
Borrower, it being understood and agreed that the investment objectives
and/or history of any proposed Assignee or its Affiliates shall be a reasonable basis for Borrower to withhold consent; provided
that no consent of the Borrower shall be required for (i) for
an assignment of all or any portion of the Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund (excluding
any Affiliates or Approved Funds that are “distressed debt” funds or are otherwise primarily engaged in the making, purchasing,
holding or otherwise investing in distressed commercial loans, bonds and other similar extensions of credit), (ii) for
an assignment related to Revolving Credit Commitments or Revolving Credit Exposure by a Revolving Credit Lender to another
Revolving Credit Lender or an Affiliate of such Revolving Credit Lender of similar creditworthiness, to such assigning Revolving Credit Lender (excluding any
Affiliates or Approved Funds that are “distressed debt” funds or are otherwise primarily engaged in the making, purchasing,
holding or otherwise investing in distressed commercial loans, bonds and other similar extensions of credit), (iii) if an
Event of Default under Section 8.01(a) or, solely with respect to the Borrower, Section 8.01(f) has
occurred and is continuing, (iv) for an assignment of all or
a portion of the Commitments or Loans pursuant to Section 10.07(l),
Section 10.07(m) or Section 10.07(p) or,
(v) any assignment made in connection with the primary syndication of the Facilities to Eligible Assignees approved by the
Borrower on or prior to the Amendment No. 6 Effective Date or (vi) for
an assignment by and among Goldman Sachs Bank USA and Goldman Sachs Lending Partners LLC;
(B) the
Administrative Agent (such consent not to be unreasonably withheld, delayed
or conditioned); provided that no consent of the Administrative Agent shall be required for an assignment of
(i) of all or any portion of a Term Loan to a Lender, an Affiliate of a
Lender or an Approved Fund or (ii) all or any portion of the Loans pursuant to Section 10.07(l) or Section 10.07(m);
and
(C) each
L/C Issuer at the time of such assignment (such consent not to be unreasonably
withheld, delayed or conditioned); provided that no consent of the L/C Issuers shall be required for any assignment not
related to Revolving Credit Commitments or Revolving Credit Exposure; and.
(D) the
Swing Line Lender; provided that no consent of the Swing Line Lender shall be required for any assignment not related to Revolving Credit
Commitments or Revolving Credit Exposure.
(ii) Assignments
shall be subject to the following additional conditions:
(A) except
in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than an amount of $2,500,0005,000,000
(in the case of each Revolving Credit Loan or Revolving Credit Commitment), $1,000,000 (in the case of a Term Loan), and shall
be in increments of an amount of $1,000,000500,000
(in the case of each Revolving Credit Loan or Revolving Credit Commitment) or $1,000,000250,000
(in the case of Term Loans) in excess thereof (provided that simultaneous assignments to or from two or more Approved Funds
shall be aggregated for purposes of determining compliance with this Section 10.07(b)(ii)(A)), unless each of the Borrower
and the Administrative Agent otherwise consents; provided that such amounts shall be aggregated in respect of each Lender and
its Affiliates or Approved Funds, if any;
(B) the
parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption via an electronic settlement
system acceptable to the Administrative Agent (or if previously agreed with the Administrative Agent, manually), together with a processing
and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); provided
that only one such fee shall be payable in the event of simultaneous assignments to or from two or more Approved Funds; and
(C) other
than in the case of assignments pursuant to Section 10.07(m), the Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire (in which the Assignee shall designate one or more credit contacts to whom all
syndicate-level information (which may contain material non-public information about the Loan Parties and their Affiliates or their respective
securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures
and applicable lLaws,
including federal and state securities laws) and all applicable tax forms and
certificates required pursuant to Section 3.01(d).
ThisEach
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Commitment or Loans assigned, except this paragraph (b) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis among such Facilities.
In connection with any assignment
of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to
the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative
Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative
Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting
Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate)
its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in
accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then
the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(c) Subject
to acceptance and recording thereof by the Administrative Agent pursuant to Sections 10.07(d) and (e), from and after
the effective date specified in each Assignment and Assumption, (1) other than in connection with an assignment pursuant to Section 10.07(m),
the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and (2) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, and the surrender by the assigning Lender of its Note(s),
the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this clause (c) shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(f).
(d) The
Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s
Office a copy of each Assignment and Assumption, each Affiliated Lender Assignment and Assumption delivered to it, and each notice of
cancellation of any Loans delivered by the Borrower to the Administrative Agent pursuant to Section 10.07(m) and a register
for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts)
of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and the amounts due under Section 2.03,
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register
shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrower, any Agent and, with respect to such Lender’s
own interest only, any Lender, at any reasonable time and from time to time upon reasonable prior notice. This Section 10.07(d) and
Section 2.11 shall be construed so that all Loans are at all times maintained in “registered form” within the
meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury regulations (or any other relevant
or successor provisions of the Code or of such Treasury regulations). Notwithstanding the foregoing, in no event shall the Administrative
Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent
be obligated to monitor the aggregate amount of Term Loans or Incremental Term Loans held
by Affiliated Lenders. Upon request by the Administrative Agent, the Borrower shall (i) promptly (and in any case, not less
than five (5) Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of
any amendment, consent or waiver pursuant to Section 10.01) provide to the Administrative Agent, a complete list of all Affiliated
Lenders holding Term Loans or Incremental Term Loansand/or
Commitments at such time and (ii) not less than five (5) Business Days (or shorter period as agreed to by the Administrative
Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Section 10.01, provide to the
Administrative Agent, a complete list of all Debt Fund Affiliates holding Term Loans
or Incremental Term Loansand/or
Commitments at such time.
(e) Upon
its receipt of, and consent to, a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if applicable, and the written consent of the Administrative Agent, if required, and, if
required, the Borrower, the Swing Line Lender and each L/C Issuer to such assignment
and any applicable tax forms and certificates required pursuant to
Section 3.01(d), the Administrative Agent shall promptly (i) accept such Assignment and Assumption and (ii) record
the information contained therein in the Register. No assignment shall be effective unless it has been recorded in the Register as provided
in this paragraph (e).
(f) Any
Lender may at any time sell participations to any Person, subject to the proviso to Section 10.07(a) (each,
a “Participant”), in all or a portion of such Lender’s rights and/or obligations under this Agreement (including
all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or
Swing Line Loans) owing to it); provided,
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall (i) include
a requirement that such Participant comply with the provisions of this Section 10.07(f) in connection with any subparticipations
it may sell to any Person (including those provisions relating to Disqualified Lender) and (ii) provide that such Lender
shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver
of any provision of this Agreement or the other Loan Documents; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the second
proviso to Section 10.01 that requires the affirmative vote of such Lender,
in each case to the extent the Participant is directly and adversely affected thereby. Subject to Section 10.07(g),
the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01,
and 3.04 and
3.05 (subject to the requirements and limitations of such Sections) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 10.07(c). To the extent permitted by applicable Law,
each Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender; provided
that such Participant agrees toshall
be subject to Section 2.13 as though it were a Lender. Each Participant
and each SPC will provide any applicable tax forms and certificates required pursuant to Section 3.01(d) solely to the participating
Lender or Granting Lender, as applicable. Each Lender that sells a participation or
grants a Loan to an SPC 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 SPC and the
principal amounts (and statedrelated
interest amounts) of each pParticipant’s
and each SPC’s interest in the Loans or other obligations under
this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose
all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to
a Participant’s interest in any Commitments, Loans or Letters of Credit or its other obligations under any Loan Document) except
to the extent that(x) such
disclosure is necessary in connection with an audit or other proceeding to establish that such Commitment, Loan, Letter of Credit or
other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations,
Section 1.163-5(b) of the proposed United States Treasury Regulations or any applicable temporary, final or other successor
regulations, (y) upon request of the Borrower, to confirm no Participant or SPC of Term Loans is a Disqualified Lender, a natural
Person or (z) in connection with the request for consent for participation in respect of any Revolving Credit Facility or Revolving
Credit Exposure. The entries in the Participant Register shall be conclusive,
and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary.
(g) A
Participant shall not be entitled to receive any greater payment under Sections 3.01, or
3.04 or 3.05 than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent, not to be unreasonably withheld or delayed.
(for the avoidance of doubt, it
is understood and agreed that (i) the investment objectives and/or history of any proposed Participant or its Affiliates shall be
a reasonable basis for Borrower to withhold consent and (ii) the Borrower shall have reasonable basis for withholding consent if
any participation would result in increased indemnification obligations to the Borrower at such time).
(h) Any
Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that
no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.[Reserved].
(i) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”)
the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, (ii) if an SPC elects not
to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof and (iii) such SPC and the applicable Loan or any applicable part thereof, shall be appropriately
reflected in the Participant Register. Each party hereto hereby agrees that (i) an SPC shall be entitled to the benefit of Sections
3.01, and
3.04 and 3.05 (subject to the requirements and the limitations
of such Sections), but 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 except, in the case of Sections 3.01
or 3.04, to the extent that the grant to the SPC was made with the prior written consent of the Borrower
(not to be unreasonably withheld or delayed; for the avoidance of doubt, theit
is understood and agreed that (A) the investment objectives and/or history of any proposed SPC or its Affiliates shall be a reasonable
basis for Borrower to withhold consent and (B) the Borrower shall have reasonable basis for withholding consent if an exercise
by SPC immediately after the grant would result in materially increased indemnification obligations to the Borrower at such time), (ii) no
SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any
Loan Document, remain the lender of record hereunder. The making of a 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. Notwithstanding anything to the contrary contained
herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment
of a processing fee of $3,500, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any Rating Agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(j) Notwithstanding
anything to the contrary contained herein, without the consent of the Borrower or the Administrative Agent, (1) any
Lender may in accordance with applicable Law create a security interest in all or any portion of the Loans owing to it and the Note,
if any, held by it (and (2)in
the case of any Lender that is a Fund may create
a, such security interest in
all or any portion of the Loans owing to it and the
Note, if any, held by it tomay be created in favor of
the trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities),
including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such
Lender; provided that unless and until such trusteepledgee
actually becomes a Lender in compliance with the other provisions of this Section 10.07, (i) no such pledge
shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trusteepledgee
shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trusteepledgee
may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(k) Notwithstanding
anything to the contrary contained herein, any L/C Issuer or Swing Line Lender may,
upon thirty (30) days’ notice to the Borrower and the Lenders, resign as an L/C Issuer or Swing
Line Lender, respectively; provided that on or prior to the expiration of such 30-day period with respect to such
resignation, the relevant L/C Issuer or Swing Line Lender shall have identified a successor
L/C Issuer or Swing Line Lender reasonably acceptable to the Borrower willing to accept
its appointment as successor L/C Issuer or Swing Line Lender, as applicable, and to assume a Letter
of Credit Percentage equal to or greater than the Letter of Credit Percentage of the resigning L/C Issuer. In the event of any such resignation
of an L/C Issuer or Swing Line Lender,
unless, at the option of the Borrower, the Borrower shall be entitled tohave
appointed one or more L/C Issuers from among the Lenders willing
to accept such appointment as a successor L/C Issuer or
Swing Line Lender hereunder; provided that no failure by the Borrower to appoint any such successor shall affect
the resignation of the relevant L/C Issuer or the Swing Line Lender, as the case may be,
except as expressly provided above. If an L/C Issuer resigns as an L/C Issuer, it shall retain all the rights and obligations of an L/C
Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations
in Unreimbursed Amounts pursuant to Section 2.03(c)). If the Swing Line Lender
resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base
Rate Loans, RFR Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
(l) (1) Any
Lender may, so long as no Default has occurred and is continuing, at any time,
assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to a Person who is or will
become, after such assignment, an Affiliated Lender through (x) “Dutch aAuctions” open
to all Lenders of the applicable Class on a pro rata basis
in accordance with analogous procedures of the type described in
Section 2.05(a)(v) or (y) open market purchases on a(or
other procedures as agreed between the Borrower and the Administrative Agent (or other agent managing such auction)) or
(y) open-market or other privately negotiated purchases (including an exchange on a pro rata or non-pro rata basis and
(2) any Affiliated Lender may, at any time, purchase all or a portion of the rights and obligations of a Defaulting
Lender, in each case subject to the following limitations:
(i) the
assigning Lender and the Affiliated Lender purchasing such Lender’s Term Loans
and/or Commitments shall execute and deliver to the Administrative
Agent an assignment agreement substantially in the form of Exhibit ML-1
hereto (an “Affiliated Lender Assignment and Assumption”);
(ii) Affiliated
Lenders will not receive information provided solely to Lenders by the Administrative Agent or any Lender and will not be permitted to
attend or participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, other than the right
to receive notices of prepayments and other administrative notices in respect of its Loans or Commitments required to be delivered to
Lenders pursuant to Article II;
(iii) the
aggregate principal amount of Term Loans held at any one time by Affiliated Lenders shall not exceed 30% of the principal amount of all
Term Loans outstanding at such time outstanding(measured
at the time of purchase) (such percentage, the “Affiliated Lender Cap”); and
(iv) with
respect to Section 10.07(l)(2), any non-Defaulting Lender of the same Class willing to repurchase any Loans/Commitments of
the Defaulting Lenders from the Affiliated Lenders shall have the right to make such repurchase at par, plus accrued and unpaid interest
or at a lower price agreed to by such Defaulting Lender on a pro rata basis based on their share of the applicable Facility; and
(ivv) as
a condition to each assignment pursuant to this clause (l), the Administrative Agent shall have been provided aan
Affiliated Lender nNotice
in the form of Exhibit M-2 to
this Agreement in connection with each assignment to an Affiliated Lender or a Person that upon effectiveness of such assignment would
constitute an Affiliated Lender pursuant to which such Affiliated Lender shall waive any right to bring any action in connection with
such Term Loans and/or
Commitments against the Administrative Agent, in its capacity as such.
Each Affiliated Lender agrees
to notify the Administrative Agent promptly (and in any event within ten (10) Business Days) if it acquires any Person who is also
a Lender, and each Lender agrees to notify the Administrative Agent promptly (and in any event within ten (10) Business Days) if
it becomes an Affiliated Lender. Such notice shall contain the type of information required and be delivered to the same addressee as
set forth in Exhibit ML-2.
Notwithstanding
anything to the contrary set forth herein, an Affiliated Lender may, but shall not be required to, contribute any Term Loans held by
it at any time directly or indirectly to the Borrower (including in exchange for any issuance of capital stock of Holdings or a direct
or indirect parent thereof that is otherwise permitted to be issued by the Borrower or such parent entity at such time, which shall not
be required to be made to any other Lender whether on a pro rata or non-pro rata basis, for the avoidance of doubt), in which case, such
Term Loans shall be canceled as described in Section 10.07(m)(ii).
(m) Any
Lender may, so long as no Event of Default has occurred and is continuing
and, only to the extent purchased at a discount, no proceeds of Revolving Credit BorrowingsLoans
are applied to fund the consideration for any such assignment, at any time, assign all or a portion of its rights and obligations
with respect to Term Loans under this Agreement to Holdings or the Borrower or
any of its Subsidiaries through (x) “Dutch aAuctions”
open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) (or
such other procedures as agreed between the Borrower and the Administrative Agent (or other agent managing such auction)) or (y) notwithstanding
Sections 2.12 and 2.13 or any other provision in this Agreement, open
marketopen-market or other privately negotiated
purchases on
a(including an exchange) on a pro rata or
non-pro rata basis; provided that in connection with assignments pursuant to clauses (x) and (y) above:
(i) if
Holdings or any Subsidiary of the Borrower is the assignee, upon
such assignment, transfer or contribution, Holdings or such Subsidiary shall
automatically be deemed to have contributed, assigned or transferred
the principal amount of such Term Loans, plus all accrued and unpaid interest thereon, to the Borrower; or
(ii) if
the assignee is the Borrower (including through contribution or transfers set forth in clause (i) above), (A) the principal
amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower
shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (B) the aggregate
outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans
then held by the Borrower and (C) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment
or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable
Term Loans in the Register.
(n) Notwithstanding
anything in Section 10.01 or the definition of “Required Lenders,”,
“Required Class Lenders,”,
or “Required Facility Lenders” to the contrary, for purposes of determining whether the Required Lenders, the
Required Class Lenders (in respect of a Class of Term Loans) or the Required
Facility Lenders 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,
unless the action in question affects any Non-Debt Fund Affiliated
Lender in a disproportionately adverse manner than its effect on the other Lenders, or subject to Section 10.07(o),
any plan of reorganization pursuant to the U.S. Bankruptcy Code of
the United States, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the
Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document,
no Affiliated Lender shall have any right to consent (or not consent), otherwise act or direct or require the Administrative Agent or
any Lender to take (or refrain from taking) any such action and:
(A) all
TermCommitments or
Loans held by any Affiliated Lenders shall be deemed to be not outstanding for all purposes of calculating whether the Required Lenders,
the Required Class Lenders (in respect of a Class of Term Loans) or the Required
Facility Lenders have taken any actions; and
(B) all
TermCommitments or
Loans held by Affiliated Lenders shall be deemed to be not outstanding for all purposes of calculating whether all Lenders have taken
any action unless the action in question affects such Affiliated Lender in a disproportionately adverse manner than its effect on other
Lenders.
(o) Notwithstanding
anything in this Agreement or the other Loan Documents to the contrary, each Affiliated Lender hereby agrees that and each Affiliated
Lender Assignment and Assumption shall provide a confirmation that, if a proceeding under any Debtor Relief Law shall be commenced by
or against the Borrower or any other Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably
authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Term
Loans held by such Affiliated Lender in any manner in the Administrative Agent’s sole discretion, unless the Administrative
Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Term
Loans held by it as the Administrative Agent directs; provided that such Affiliated Lender shall be entitled to
vote in accordance with its sole discretion (and not in accordance with the direction of the Administrative Agent) in connection with
any plan of reorganization to the extent any such plan of reorganization proposes to treat any Obligations held by such Affiliated Lender
in a disproportionately adverse manner to such Affiliated Lender than the proposed treatment of similar Obligations held by Term
Lenders that are not Affiliated Lenders.
(p) Notwithstanding
anything in Section 10.01 or the definition of “Required Lenders” to the contrary, for purposes of determining
whether the Required Lenders 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 the Administrative Agent or any Lender to undertake any action
(or refrain from taking any action) with respect to or under any Loan Document, all Term Loans, Revolving Credit Commitments and Revolving
Credit Loans held by Debt Fund Affiliates may not account for more than 50% (pro rata among such Debt Fund Affiliates) of the Term Loans,
Revolving Credit Commitments and Revolving Credit Loans of consenting Lenders included in determining whether the Required Lenders have
consented to any action pursuant to Section 10.01.
(q) Any
request for consent of the Borrower pursuant to Section 10.07(b)(i)(A) or Section 10.07(f) and related communications
shall be delivered by the Administrative Agent simultaneously to (A) any recipient that is an employee of Holdings or the Borrower,
as designated in writing to the Administrative Agent by the Borrower from time to time (if any) and (B) the chief financial officer
of the Borrower or any other Responsible Officer designated by the Borrower in writing to the Administrative Agent from time to time.
SECTION 10.08 Confidentiality.
Each of the Agents,
the Lead Arrangers and the Lenders agrees to maintain the confidentiality of the Information and not to disclose such information,
except that Information may be disclosed (a) to its Affiliates and its Approved
Funds and its and their respective managers, administrators, directors, officers, employees, trustees, partners, investors, investment
advisors, financing sources and agents, including accountants, legal
counsel and other advisors (excluding Affiliates’,
managers, administrators, directors, officers, employees, trustees, partners, investors, investment advisors and agents,
including accountants, legal counsel and other advisors that
are engaged as principals primarily in the business of (i) asset management or (ii) the sale or distribution of asset management
products, including, without limitation, mutual funds, in each case, other than a limited number of senior employees who are required,
in accordance with such Lender’s internal policies and procedures, to act in a supervisory capacity and such Lender’s internal
legal, compliance, risk management, credit or investment committee members (each, with respect to any Lender, an “Excluded Person”))
(it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information
and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority or self-regulatory
authority having or asserting jurisdiction over such Person (including any Governmental Authority or examiner (including the National
Association of Insurance Commissioners or any other similar organization) regulating any Lender or its Affiliates); provided that
the Administrative Agent, such Lead Arranger or such Lender, as applicable,
agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the
request of a regulatory authority or examiner) unless such notification is prohibited by law, rule or regulation; (c) to the
CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities
or market data collectors, similar services providers to the lending industry and service providers to the Administrative Agent in connection
with the administration and management of this Agreement and the Loan Documents; (d) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; provided that the Administrative Agent or such Lender, as applicable,
agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (other than at the
request of a regulatory authority or examiner) unless such notification is prohibited by law, rule or regulation; (e) to any
other party to this Agreement or to the Permitted Holders; (f) subject
to an agreement containing provisions at least as restrictive as those set forth in this Section 10.08 (or as may otherwise
be reasonably acceptable to the Borrower), to any pledgee referred to in Section 10.07(hj),
counterparty to a Swap Contract, Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in any
of its rights or obligations under this Agreement (other than an Excluded
Person that is not a Bona Fide Debt Fund) (provided that the disclosure of any such Information to any Lenders or Eligible Assignees
or Participants shall be made subject to the acknowledgement and acceptance by such
Lender, Eligible Assignee or Participant that such Information is being disseminated on a confidential basis (on substantially the terms
set forth in this Section 10.08 or as otherwise reasonably acceptable to the Borrower, including, without limitation,
as agreed in any Borrower Materials) in accordance with the standard processes of the Administrative Agent or customary market standards
for dissemination of such type of Information); provided that nothing
in this Section 10.08 shall prohibit any Lender from disclosing any such information to an Excluded Person that is a Bona Fide Debt
Fund in its capacity as an Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in any of its
rights or obligations under this Agreement; (g) with the written consent of the Borrower; (h) to the extent such Information
becomes publicly available other than as a result of a breach of this Section 10.08 or becomes available to the Administrative
Agent, the Lead Arrangers, any Lender, the L/C Issuer or any of their respective Affiliates on a non-confidential
basis from a source other than a Loan Party or any Investor or their respective Affiliates (so long as such source is not known to the
Administrative Agent, the Lead Arrangers, such Lender, such L/C Issuer or any of their respective Affiliates to be bound by confidentiality
obligations to any Loan Party); (i) to any Governmental Authority or examiner (including the National
Association of Insurance Commissioners or any other similar organization) regulating any Lender; [reserved];
(j) to any Rating Agency when required by it (it being understood that, prior to any such disclosure, such Rating Agency
shall undertake to preserve the confidentiality of any Information relating to Loan Parties and their Subsidiaries received by it from
such Lender) or to the CUSIP Service Bureau or any similar organization; (k) in connection with the
exercise of any remedies hereunder, under any other Loan Document or
the enforcement of its rights hereunder or thereunderestablishing
a “due diligence” defense or (l) to the extent such Information is independently developed by the Administrative
Agent, the Lead Arrangers, such Lender, such L/C Issuer or any of their respective Affiliates; provided that no disclosure shall
be made to any Disqualified Lender or Excluded Person (other than an Excluded
Person that is a Bona Fide Debt Fund in its capacity as a prospective Eligible Assignee of or Participant in any of its rights or obligations
under this Agreement). In addition, the Agents, the Lead Arrangers
and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market
data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection
with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For the
purposes of this Section 10.08, “Information” means all information received from the Loan Parties
relating to any Loan Party, its Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors
or agents, relating to Holdings, the Borrower or any of their Subsidiaries or its business, other than any such information that is publicly
available to any Agent, any Lead Arranger, any L/C Issuer or any
Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08; provided
that all information received after the Closing Date from Holdings, the Borrower or any of its Subsidiaries shall be deemed confidential
unless such information is clearly identified at the time of delivery as not being confidential. Notwithstanding
the foregoing, for the avoidance of doubt, each of the Agents, the Lead Arrangers and the Lenders agree that no Information shall be
disclosed to any credit research firms, providers of indenture and loan agreement analysis or similar services.
SECTION 10.09 Setoff.
In addition to any rights and
remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its
Affiliates (and the Collateral Agent, in respect of any unpaid fees, costs and expenses payable hereunder) is authorized at any time
and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrower (on its own behalf and on behalf
of each Loan Party and each of its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by,
such Lender and its Affiliates or the Collateral Agent to or for the credit or the account of the respective Loan Parties and their Subsidiaries
against any and all Obligations owing to such Lender and its Affiliates or the Collateral Agent hereunder or under any other Loan Document,
now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that
of the applicable deposit or Indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right
of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance
with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers, and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting
Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Administrative Agent, the Collateral Agent and each Lender under this Section 10.09
are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, the Collateral Agent
and such Lender may have. No amounts set off from any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.
SECTION 10.10 Interest
Rate Limitation.
Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum
rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by an Agent
or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
SECTION 10.11 Counterparts.
This Agreement and each other
Loan Document 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 telecopier or other electronic transmission of an executed counterpart of a signature
page to this Agreement and each other Loan Document shall be effective as delivery of an original executed counterpart of this Agreement
and such other Loan Document. The Agents may also require that any such documents and signatures delivered by telecopier or other electronic
transmission be confirmed by a manually signedan
original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document
or signature delivered by telecopier or other electronic transmission.
SECTION 10.12 Integration;
Termination.
This Agreement, together with
the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with
this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
SECTION 10.13 Survival
of Representations and Warranties.
All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by
each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that
any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
SECTION 10.14 Severability.
If any provision of this
Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of
the remaining provisions of this Agreement and the other Loan Documents 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.
Without limiting the foregoing provisions of this Section 10.14, if and to the extent that the enforceability of any
provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by
the Administrative Agent, or
the L/C Issuers or the Swing
Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. Without
limiting the foregoing provisions of this Section 10.14, if and to the
extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders
shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent,
the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be
in effect only to the extent not so limited.
SECTION 10.15 GOVERNING
LAW.
(a) THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY
LEGAL ACTION OR PROCEEDING ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITYCOUNTY
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE SITTING
IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY, EACH AGENT AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS AND AGREES THAT IT WILL NOT COMMENCE OR SUPPORT
ANY SUCH ACTION OR PROCEEDING IN ANOTHER JURISDICTION. EACH LOAN PARTY, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS
IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER OR OTHER ELECTRONIC TRANSMISSION) IN SECTION 10.02. NOTHING IN
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION TO ENFORCE ANY AWARD OR JUDGMENT OR EXERCISE ANY RIGHT UNDER THE COLLATERAL
DOCUMENTS AGAINST ANY COLLATERAL OR ANY OTHER PROPERTY OF ANY LOAN PARTY IN ANY OTHER FORUM IN ANY JURISDICTION IN WHICH COLLATERAL IS
LOCATED.
SECTION 10.16 WAIVER
OF RIGHT TO TRIAL BY JURY.
TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 10.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 10.17 Binding
Effect.
This Agreement shall become
effective when it shall have been executed by the Loan Parties, the Administrative Agent, the Collateral Agent, the L/C Issuers and the
Administrative Agent shall have been notified by each Lender, and
the Swing LineL/C
Issuers that each Lender and the L/C Issuers that each Lender, the Swing Line Lender and the
L/C Issuers have executed it and thereafter this Agreement shall be binding upon and inure to the benefit of the Loan
Parties, each Agent and each Lender and their respective successors and assigns, in each case in accordance with Section 10.07
(if applicable) and except that no Loan Party shall have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lenders except as permitted by Section 7.04.
SECTION 10.18 USA
PATRIOT Act; Beneficial Ownership.
Each Lender that is subject
to the USA PATRIOT Act and the Beneficial Ownership Regulation, and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements
of the USA PATRIOT Act and the Beneficial Ownership Regulation, 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 regarding such Loan Party that will allow such Lender or the Administrative
Agent, as applicable, to identify such Loan Party in accordance with the USA PATRIOT Act and,
if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower in accordance
with the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the USA PATRIOT Act and
the Beneficial Ownership Regulation, and is effective as to the Lenders
and the Administrative Agent.
SECTION 10.19 No
Advisory or Fiduciary Responsibility.
(a) In
connection with all aspects of each transaction contemplated hereby, each Loan Party acknowledges and agrees, and acknowledges its Affiliates’
understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length
commercial transaction between the Borrower and its Affiliates, on the one hand, and the Agents, the Lead Arrangers and the Lenders,
on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof
or thereof), (ii) in connection with the process leading to such transaction, each of the Agents, the Lead Arrangers and the Lenders
is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates,
stockholders, creditors or employees or any other Person, (iii) none of the Agents, the Lead Arrangers or the Lenders has assumed
or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated
hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan
Document (irrespective of whether any Agent, Lead Arranger or Lender
has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Agents, the Lead Arrangers
or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Agents, the Lead Arrangers and the
Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and
may conflict with, those of the Borrower and its Affiliates, and none of the Agents, the Lead Arrangers or the Lenders has any obligation
to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Agents, the Lead Arrangers
and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties
have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate. Each Loan Party hereby
waives and releases, to the fullest extent permitted by law, any claims that it may have against the Agents, the Lead Arrangers and the
Lenders with respect to any breach or alleged breach of agency or fiduciary duty under applicable lLaw
relating to agency and fiduciary obligations.
(b) Each
Loan Party acknowledges and agrees that each Lender, the Lead Arrangers and any Affiliate thereof may lend money to, invest in, and generally
engage in any kind of business with, any of the Borrower, Holdings, any Investor, any Affiliate thereof or any other person or entity
that may do business with or own securities of any of the foregoing, all as if such Lender, the Lead Arrangers or Affiliate thereof were
not a Lender, the Lead Arrangers or an Affiliate thereof (or an agent or any other person with any similar role under the Facilities)
and without any duty to account therefor to any other Lender, the Lead Arrangers, Holdings, the Borrower, any Investor or any Affiliate
of the foregoing. Each Lender, the Lead Arrangers and any Affiliate thereof may accept fees and other consideration from Holdings, the
Borrower, any Investor or any Affiliate thereof for services in connection with this Agreement, the Facilities or otherwise without having
to account for the same to any other Lender, the Lead Arrangers, Holdings, the Borrower, any Investor or any Affiliate of the foregoing.
Some or all of the Lenders and the Lead Arrangers may have directly or indirectly acquired certain equity interests (including warrants)
in Holdings, the Borrower, an Investor or an Affiliate thereof or may have directly or indirectly extended credit on a subordinated basis
to Holdings, the Borrower, an Investor or an Affiliate thereof. Each party hereto, on its behalf and on behalf of its Affiliates, acknowledges
and waives the potential conflict of interest resulting from any such Lender, the Lead Arrangers or an Affiliate thereof holding disproportionate
interests in the extensions of credit under the Facilities or otherwise acting as arranger or agent thereunder and such Lender, the Lead
Arrangers or any Affiliate thereof directly or indirectly holding equity interests in or subordinated debt issued by Holdings, the Borrower,
an Investor or an Affiliate thereof.
SECTION 10.20 Electronic
Execution of Assignments.
The words “execution,”
“execute,” “signed,” “signature,” and words of like import in or
related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including, without limitation,
any Assignment and Assumption, amendment, Request for Credit Extension,
waiver or consent) shall be deemed to include electronic signatures,
the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent,
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based record keeping system, as the case may be, to the extent and as provided for in any applicable
lLaw, 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 10.21 Effect
of Certain Inaccuracies.
In the event that any financial
statement or Compliance Certificate previously delivered pursuant to Section 6.02(a) was inaccurate or
was restated (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, or such restatement 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 Administrative Agent a corrected or
restated financial statement and a corrected or updated Compliance
Certificate for such Applicable Period, (ii) the Applicable Rate shall be determined based on the correctedupdated
Compliance Certificate for such Applicable Period, and (iii) the Borrower shall within fifteen
(15) days after the delivery of the corrected or
restated financial statements and the updated Compliance Certificate
pay to the Administrative Agent the accrued additional interest or fees owing as a result of such increased Applicable Rate for such
Applicable Period. This Section 10.21 shall not limit the rights of the Administrative Agent or the Lenders with respect
to Sections 2.08(b) and 8.01; provided that any underpayment
due to change in Applicable Rate shall not in itself constitute a Default or Event of Default under Section 8.01 so long as such
additional interest or fees are paid within the 15-day period set forth above.
SECTION 10.22 Judgment
Currency.
If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from the Borrower hereunder in the currency expressed to be payable herein
(the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively
do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures any Lender could purchase the
specified currency with such other currency at such Lender’s New York office on the Business Day preceding that on which final
judgment is given. The obligations of the Borrower in respect of any sum due to any Lender hereunder shall, notwithstanding any judgment
in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such
Lender of any sum adjudged to be so due in such other currency such Lender may in accordance with normal banking procedures purchase
the specified currency with such other currency; if the amount of the specified currency so purchased is less than the sum originally
due to such Lender in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify the Lender against such loss, and if the amount of the specified currency
so purchased exceeds the sum originally due to such Lender in the specified currency, such Lender agrees to remit such excess to the
Borrower.
SECTION 10.23 Acknowledgement
and Consent to Bail-In of EEAAffected
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 Lender that is an 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 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 to any Lender that is an Affected
Financial Institution; and |
| (b) | the effects of any Bail-iIn
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 undertakingentity,
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 Acknowledgement
Regarding any Supported QFCsCashless 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 Facilities, Facilities in connection with any Refinancing Series, Extended Term Loans, Extended Revolving Credit
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 10.25 Acknowledgment
Regarding Any Supported QFCs.
To
the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract 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.
(b) As
used in this Section 10.2410.25,
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.
“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 10.25 Borrower
Obligations.
(a) Notwithstanding
anything herein or in any Loan Document to the contrary, and solely with respect to the Initial B-4 Dollar Term Loan Obligations, the
Borrower and Co-Borrowers shall have joint and several liability in respect of all Initial B-4 Dollar Term Loan Obligations, without
regard to any defense (other than the defense that payment in full has been made), setoff or counterclaim which may at any time be available
to or be asserted by any other Loan Party against the Lenders, or by any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower and the Co-Borrowers) which constitutes, or might be construed to constitute, an equitable or legal discharge
of the Borrower or the Co-Borrowers’ liability hereunder, in bankruptcy or in any other instance, and the Initial B-4 Dollar Term
Loan Obligations of the Borrower and the Co-Borrowers hereunder shall not be conditioned or contingent upon the pursuit by the Lenders
or any other person at any time of any right or remedy against the Borrower, the Co-Borrowers or against any other person which may be
or become liable in respect of all or any part of the Initial B-4 Dollar Term Loan Obligations or against any Collateral or Guarantee
therefor or right of offset with respect thereto. Each of the Borrower and the Co-Borrowers hereby acknowledge and agree that, solely
with respect to the Initial B-4 Dollar Term Loans, this Agreement is the independent and several obligation of each of the Borrower and
the Co-Borrowers (regardless of the Borrower having delivered a request for borrowings under Section 2.02)
and may be enforced against each of the Borrower and the Co-Borrowers separately, whether or not enforcement of any right or remedy hereunder
has been sought against the Borrower or any Co-Borrower. Each of the Borrower and the Co-Borrowers hereby expressly waive diligence,
presentment, demand of payment, protest and, to the extent permitted by Law, all notices whatsoever, and any requirement that any Secured
Party exhaust any right, power or remedy or proceed against any other Loan Party under this Agreement or the Notes, if any, or any other
agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any
of the Initial B-4 Dollar Term Loan Obligations. The foregoing is in addition to, and not in lieu of, any of the other obligations of
the Borrower and the Co-Borrowers under this Agreement, including, for the avoidance of doubt, the primary obligations of the Borrower
and the Co-Borrowers, and the Guaranty of the Obligations by the Co-Borrowers.
(b) Solely
with respect to the Initial B-4 Dollar Term Loans, any Subsidiary Guarantor may become a Co-Borrower and a Borrower hereunder by execution
of a joinder agreement substantially in the form of Exhibit O (or such other form as may
be agreed to by the Administrative Agent acting reasonably).
(c) Notwithstanding
anything herein or in any Loan Document to the contrary, when any Subsidiary Guarantor becomes a Co-Borrower hereunder, so long as such
Subsidiary remains a Co-Borrower, such Subsidiary shall (i) not be or become an Excluded Subsidiary, (ii) shall continue to
be a “Guarantor” and a “Subsidiary Guarantor” and (iii) not be or become a Transferred Guarantor.
SECTION 10.26 Restructuring
TransactionsSECTION 10.27
(a) Each
Additional B-4 Dollar Term Lender agrees that, at the election of the Borrower, in one or more transactions and from time to time after
the Restructuring Consent Date, (i) (A) each of Omaha Holdings LLC (or any other Person otherwise constituting “Holdings
I”) and Gates Holdings 1 LLC (or any other Person otherwise constituting “Holdings II”) (collectively, “Existing
Holdings”) may assign all of its rights, title, interests, duties, liabilities and obligations (including the Obligations)
under the Loan Documents as “Holdings” and a Guarantor to one or more Persons organized, formed or incorporated under the
Laws of the United States, any state thereof or the District of Columbia or organized, formed or incorporated under the Laws of England
and Wales (or such other jurisdiction as reasonably acceptable to the Administrative Agent) (such Person or Persons, individually or
collectively, as applicable, “New Holdings”); provided that (1) one of New Holdings directly and collectively
owns 100% of the issued and outstanding Equity Interests in the Borrower, (2) New Holdings issues a Guarantee of the Obligations
and assumes all of such rights, title, interests, duties, liabilities and obligations of Existing Holdings under this Agreement and the
other Loan Documents, (3) no Event of Default shall have occurred and be continuing at the time of the Holdings Restructuring Transaction
(as defined below) or shall result therefrom, (4) the Administrative Agent shall have received all documentation and other information
about New Holdings, required under applicable “know your customer” and anti-money laundering rules and regulations and
reasonably requested by the Administrative Agent (or by any Lender through the Administrative Agent) in writing, (5) New Holdings
shall have become party to the ABL Intercreditor Agreement pursuant to documentation in form and substance reasonably satisfactory to
the Collateral Agent, (6) New Holdings shall have pledged 100% of the Equity Interests of the Borrower and, if applicable, the Equity
Interests of its direct Subsidiaries, as applicable, in each case to the Collateral Agent for the benefit of the Secured Parties pursuant
to documentation in form and substance reasonably satisfactory to the Collateral Agent, shall have become party to the Security Agreement
and shall have satisfied the Collateral and Guarantee Requirement applicable to New Holdings (provided that (x) if New Holdings
is organized under the Laws of England and Wales, New Holdings shall cause a Companies House filing to be made to the extent necessary
to perfect the security interest of the Collateral Agent in the Equity Interests of the Borrower and, if applicable, the Equity Interests
of its direct Subsidiaries, as applicable, and (y) if New Holdings is organized under the Laws of a jurisdiction other than the
United States, any state thereof, the District of Columbia or England and Wales, New Holdings shall take such actions as it and the Collateral
Agent may reasonably agree are necessary to perfect the security interest of the Collateral Agent in the Equity Interests of the Borrower
and if applicable, the Equity Interests of its direct Subsidiaries, as applicable, in each case notwithstanding any limitations set forth
in the Collateral and Guarantee Requirement) and (7) the Holdings Restructuring Transactions (as defined below) do not, taken as
a whole, materially impair the aggregate value or the enforceability of the Guarantees under the Loan Documents of the Obligations or
the Liens of the Collateral Agent in the Collateral (this clause (i)(A), the “Holdings Assignment and Assumption”)
and (B) immediately after giving effect to the Holdings Assignment and Assumption, and without affecting the continuing rights,
title, interest, duties, liabilities and obligations of New Holdings, Existing Holdings shall be released from all of its rights, title,
interests, duties, liabilities and obligations (including the Obligations) under the Loan Documents (including any Collateral and Guarantee
Requirement) (if any) as “Holdings” (this clause (i), the “Holdings Restructuring Transactions”) and (ii) (A) the
Borrower (in such capacity, the “Existing Borrower”) may assign all of its rights, title, interests, duties, liabilities
and obligations (including the Obligations) under the Loan Documents as the “Borrower” to any other Person (including any
Co-Borrower) organized under the Laws of the United States, any state thereof or the District of Columbia (a “New Borrower”);
provided that (1) the New Borrower assumes all of such rights, title, interests, duties, liabilities and obligations of the Existing
Borrower under this Agreement and the other Loan Documents, (2) no Event of Default shall have occurred and be continuing at the
time of the Borrower Restructuring Transactions or shall result therefrom, (3) the Administrative Agent shall have received all
documentation and other information about the New Borrower, required under applicable “know your customer” and anti-money
laundering rules and regulations and reasonably requested by the Administrative Agent (or by any Lender through the Administrative
Agent) in writing, (4) New Borrower shall have become party to the ABL Intercreditor Agreement pursuant to documentation in form
and substance reasonably satisfactory to the Collateral Agent, (5) the Collateral owned by or transferred to the New Borrower from
the Existing Borrower shall continue to constitute Collateral under the Collateral Documents, (6) New Borrower shall have become
party to the Security Agreement and satisfied the Collateral and Guarantee Requirement, applicable to “Borrowers”, (7) each
Guarantor shall have confirmed in writing that its Guarantee of the Obligations shall apply to the New Borrower’s obligations under
the Loan Documents and shall have confirmed its prior grant of Liens under the Collateral Documents continue in full force and effect
after giving effect to the Borrower Restructuring Transaction, and (8) the Borrower Restructuring Transactions do not materially
impair the aggregate value or the enforceability of the Guarantees under the Loan Documents of the Obligations or the Liens of the Collateral
Agent in the Collateral (this clause (ii)(A), the “Borrower Assignment and Assumption”) and (B) immediately after
giving effect to such Borrower Assignment and Assumption, and without affecting the continuing rights, title, interest, duties, liabilities
and obligations of such New Borrower, such Existing Borrower shall be released from all of its rights, title, interests, duties, liabilities
and obligations (including the Obligations) under the Loan Documents (including any Collateral and Guarantee Requirement) (if any) as
a “Borrower” (this clause (ii), the “Borrower Restructuring Transactions” and, together with the Holdings
Restructuring Transactions, the “Restructuring Transactions”).
(b) Each
Additional B-4 Dollar Term Lender hereby consents to each of the Restructuring Transactions, the Equity Pledge Limitation (as defined
below) and the Guarantor Limitation (as defined below) and acknowledges and agrees that in no event shall any Restructuring Transaction
be deemed to constitute a Change of Control. Following the Restructuring Consent Date, the
Administrative Agent and the Borrower may amend this Agreement (i) to reflect the Restructuring
Transactions and such other related changes to this Agreement as may be applicable,
including that, for purposes of Section 7.14, New Holdings shall be permitted to directly own the Equity Interests of Subsidiaries
that are not the Borrower (in addition to the Equity Interests of the Borrower) and (ii) notwithstanding anything to the contrary
in the Loan Documents, with respect to a Loan to a U.S. Borrower, to limit the pledge of voting Equity
Interests in any CFC or FSHCO in each case that is a direct or indirect Subsidiary of a U.S. Borrower
(including any such Equity Interests previously pledged to secure the Obligations), in each case, to 65%
of the voting power of all outstanding Equity Interests of such CFC or FSHCO (the “Equity Pledge
Limitation”) and (iii) notwithstanding anything to the contrary in the Loan Documents, with respect to a Loan to a U.S.
Borrower, to exclude from the requirement to be a Subsidiary Guarantor (including removing any existing Subsidiary Guarantor) any CFC
or FSHCO in each case that is a direct or indirect Subsidiary of a U.S. Borrower (the “Guarantor Limitation”), and,
notwithstanding anything to the contrary in Section 10.01, such amendment shall become effective without any further action or consent
of any other party to this Agreement. Each Additional B-4 Dollar Term Lender authorizes the
Administrative Agent and the Collateral Agent to execute and deliver such documents, and take such other
actions as the Borrower or Holdings may reasonably request, to give effect to the Restructuring Transactions, the Equity Pledge Limitation
and the Guarantor Limitation.
(c) From
and after the consummation of the Holdings Restructuring Transactions and the Restructuring Consent Date, New Holdings shall be “Holdings”
and a “Guarantor” under this Agreement and the other Loan Documents and
a “Grantor” under the Security Agreement. New Holdings shall represent and warrant that, as of the date of the Holdings Restructuring
Transactions, one of New Holdings directly and collectively owns 100% of the Equity Interests of the Borrower.
(d) From
and after the Borrower Restructuring Transactions and the Restructuring Consent Date, the New Borrower shall be a “Borrower”
under this Agreement and the other Loan Documents and
a “Grantor” under the Security Agreement.
ARTICLE XI
Guaranty
SECTION 11.01 The
Guaranty.
Each Guarantor hereby jointly
and severally with the other Guarantors guarantees, as a primary obligor and not merely as a surety to each Secured Party and their respective
successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand,
by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but
for the provisions of (i) Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United
States Code and (ii) any other Debtor Relief Laws) on the Loans made by the Lenders to, and the Notes held by each Lender of, the
Borrower, and all other Obligations (other than with respect to any Guarantor, Excluded Swap Obligations of such Guarantor) from time
to time owing to the Secured Parties by any Loan Partythe
Borrower or any of its Subsidiaries under any Loan Document or any Secured Hedge Agreement or any Treasury Services Agreement,
in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed
Obligations”). The Guarantors hereby jointly and severally agree that if the Borrower or other Guarantor(s) shall fail
to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors
will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.
SECTION 11.02 Obligations
Unconditional.
The obligations of the Guarantors
under Section 11.01 shall constitute a guarantee of payment and to the fullest extent permitted by applicable Law, are absolute,
irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the
Guaranteed Obligations of the Borrower under this Agreement, the Secured
Hedge Agreements, the Treasury Services Agreements, the Notes, if any, or any other agreement or instrument referred to herein
or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and,
irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety
or Guarantor (except for payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any
one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable
and unconditional under any and all circumstances as described above:
(i) at
any time or from time to time, without notice to the Guarantors, to the extent permitted by Law, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
(ii) any
of the acts mentioned in any of the provisions of this Agreement or the Notes, if any, or any other agreement or instrument referred
to herein or therein shall be done or omitted;
(iii) the
maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect,
or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in
any respect or any other guarantee of any of the Guaranteed Obligations or except as permitted pursuant to Section 11.10
any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(iv) any
Lien or security interest granted to, or in favor of, an L/C Issuer or any Lender or Agent as security for any of the Guaranteed Obligations
shall fail to be perfected; or
(v) the
release of any other Guarantor pursuant to Section 11.10.
The Guarantors hereby expressly
waive diligence, presentment, demand of payment, protest and, to the extent permitted by Law, all notices whatsoever, and any requirement
that any Secured Party exhaust any right, power or remedy or proceed against the Borrower under this Agreement,
the Secured Hedge Agreements, the Treasury Services Agreements or the Notes, if any, or any other agreement or instrument referred
to herein or therein, or against any other person under any other guarantee of, or security for, any of the Guaranteed Obligations. The
Guarantors waive, to the extent permitted by Law, any and all notice of the creation, renewal, extension, waiver, termination or accrual
of any of the Guaranteed Obligations and notice of or proof of reliance by any Secured Party upon this Guaranty or acceptance of this
Guaranty, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred
in reliance upon this Guaranty, and all dealings between the Borrower and the Secured Parties shall likewise be conclusively presumed
to have been had or consummated in reliance upon this Guaranty. This Guaranty shall be construed as a continuing, absolute, irrevocable
and unconditional guarantee of payment without regard to any right of offset with respect to the Guaranteed Obligations at any time or
from time to time held by Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall not be conditioned or
contingent upon the pursuit by the Secured Parties or any other person at any time of any right or remedy against the Borrower or against
any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral
security or guarantee therefor or right of offset with respect thereto. This Guaranty shall remain in full force and effect and be binding
in accordance with and to the extent of its terms upon the Guarantors and the successors and assigns thereof, and shall inure to the
benefit of the Lenders, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement
there may be no Guaranteed Obligations outstanding.
SECTION 11.03 Reinstatement.
The obligations of the Guarantors
under this Article XI shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf
of the Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in insolvency, bankruptcy or reorganization or otherwise.
SECTION 11.04 Subrogation;
Subordination.
Each Guarantor hereby agrees
that until the payment and satisfaction in full in cash of all Guaranteed Obligations (other than (x) obligations under Secured
Hedge Agreements and Treasury Services Agreements not yet due and payable and (y) contingent indemnification obligations not yet
accrued and payable) and the expiration or termination of the Commitments of the Lenders under this Agreement, it shall waive any claim
and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 11.01,
whether by subrogation or otherwise, against the Borrower or any other Guarantor of any of the Guaranteed Obligations or any security
for any of the Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to Sections 7.03(b)(ii) or 7.03(d) shall
be subordinated to such Loan Party’s Obligations in the manner set forth in the Intercompany Note evidencing such Indebtedness.
SECTION 11.05 Remedies.
The Guarantors jointly and
severally agree that, as between the Guarantors and the Lenders, the obligations of the Borrower under this Agreement and the Notes,
if any, may be declared to be forthwith due and payable as provided in Section 8.02 (and shall be deemed to have become automatically
due and payable in the circumstances provided in Section 8.02) for purposes of Section 11.01, notwithstanding
any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable)
as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due
and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Guarantors
for purposes of Section 11.01.
SECTION 11.06 Instrument
for the Payment of Money.
Each Guarantor hereby acknowledges
that the guarantee in this Article XI constitutes an instrument for the payment of money, and consents and agrees that any
Lender or Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have
the right to bring a motion-action under New York CPLR Section 3213.
SECTION 11.07 Continuing
Guaranty.
The guarantee in this Article XI
is a continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising.
SECTION 11.08 General
Limitation on Guarantee Obligations.
In any action or proceeding
involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy,
insolvency, reorganization or other Law affecting the rights of creditors generally, if the obligations of any Subsidiary Guarantor under
Section 11.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the
claims of any other creditors, on account of the amount of its liability under Section 11.01, then, notwithstanding any other
provision to the contrary, the amount of such liability shall, without any further action by such Subsidiary Guarantor, any Loan Party
or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established
in Section 11.11) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such
action or proceeding.
SECTION 11.09 Information.
Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Guarantor assumes
and incurs under this Guaranty, and agrees that none of any Agent, any L/C Issuer or any Lender shall have any duty to advise any Guarantor
of information known to it regarding those circumstances or risks.
SECTION 11.10 Release
of Guarantors.
Any
Guarantor shall be released from its obligations under this Article XI pursuant to the terms of Section 9.11.
If,
in compliance with the terms and provisions of the Loan Documents, (i) all or substantially all of the Equity Interests or property
of any Subsidiary Guarantor are sold or otherwise transferred (a “Transferred Guarantor”) to
a person or persons, none of which is a Loan Party or (ii) any Subsidiary Guarantor becomes an Excluded
Subsidiary, such Transferred Guarantor shall, upon the consummation of such sale or transfer or upon becoming an Excluded Subsidiary,
be automatically released from its obligations under this Agreement (including under Section 10.05 hereof) and its obligations to
pledge and grant any Collateral owned by it pursuant to any Collateral Document and, in the case of a sale of all or substantially all
of the Equity Interests of the Transferred Guarantor, the pledge of such Equity Interests to the Collateral Agent pursuant to the Collateral
Documents shall be automatically released, and, so long as the Borrower shall have provided the Agents such certifications or documents
as any Agent shall reasonably request, the Administrative Agent and the Collateral Agent shall, at such Transferred Guarantor’s
expense, take such actions as are necessary to effect each release described in this Section 11.10 in accordance with the relevant
provisions of the Collateral Documents; provided that no such release shall occur if such Guarantor continues to be a guarantor
in respect of the Senior Notes, the ABL Credit Agreement (other than Canadian Subsidiaries which guarantee Indebtedness under the ABL
Credit Agreement) or any Junior Financing with a principal amount in excess of the Threshold Amount.
When
all Commitments hereunder have terminated, and all Loans or other Obligation (other than obligations under Treasury Services Agreements
or Secured Hedge Agreements) hereunder which are accrued and payable have been paid or satisfied, and no Letter of Credit remains outstanding
(except any Letter of Credit the Outstanding Amount of which the Obligations related thereto has been Cash Collateralized or for which
a backstop letter of credit reasonably satisfactory to the applicable L/C Issuer
has been put in place), this Agreement, the other Loan Documents and the guarantees made herein shall terminate with respect to all Obligations,
except with respect to Obligations that expressly survive such repayment pursuant to the terms of this
Agreement or the other Loan Documents. The Collateral Agent shall, at each Guarantor’s expense,
take such actions as are necessary to release any Collateral owned by such Guarantor in accordance with the relevant provisions of the
Collateral Documents.
SECTION 11.11 Right
of Contribution.
Each Guarantor hereby agrees
that to the extent that a Subsidiary Guarantor shall have paid more than its proportionate share of any payment made hereunder, such
Subsidiary Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not
paid its proportionate share of such payment. Each Subsidiary Guarantor’s right of contribution shall be subject to the terms and
conditions of Section 11.04. The provisions of this Section 11.11 shall in no respect limit the obligations and
liabilities of any Subsidiary Guarantor to the Administrative Agent, the L/C Issuer, the Swing Line
Lender and the Lenders, and each Subsidiary Guarantor shall remain liable to the Administrative Agent, the L/C Issuer,
the Swing Line Lender and the Lenders for the full amount guaranteed by such Subsidiary Guarantor hereunder.
SECTION 11.12 Cross-GuarantyUK
Limitation on Guarantee Obligations.
Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, to
the extent the guarantee herein is given by a Guarantor incorporated under the laws of England and Wales, such guarantee shall not apply
to any liability to the extent that it would constitute unlawful financial assistance within the meaning of sections 678 or 679 of the
Companies Act 2006 of the United Kingdom.
SECTION 11.13 Cross-Guaranty.
Each Qualified ECP Guarantor
hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified
Guarantor as may be needed by such Specified Guarantor from time to time to honor all of its obligations under its Guaranty and the other
Loan Documents in respect of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable
under this Section 11.12 for up to the maximum amount of such liability that can be hereby incurred without rendering such
Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating
to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified
ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly
paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12
constitute, and this Section 11.12 shall be deemed to constitute, an agreement for the benefit of each Specified Guarantor
for all purposes of the Commodity Exchange Act.
[Signature
pages intentionally omitted]
Exhibit B
[On file with the Administrative Agent]
Exhibit C
Exhibits
Exhibit D
UK Security Agreement
v3.24.1.1.u2
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
Gates Industrial (NYSE:GTES)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
Gates Industrial (NYSE:GTES)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024