Form 8-K
8-K — ACCENDRA HEALTH INC/VA/
Accession: 0001193125-26-271115
Filed: 2026-06-15
Period: 2026-06-09
CIK: 0000075252
SIC: 5047 (WHOLESALE-MEDICAL, DENTAL & HOSPITAL EQUIPMENT & SUPPLIES)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — d100115d8k.htm (Primary)
EX-4.1 (d100115dex41.htm)
EX-4.3 (d100115dex43.htm)
EX-4.5 (d100115dex45.htm)
EX-4.6 (d100115dex46.htm)
EX-10.1 (d100115dex101.htm)
EX-10.2 (d100115dex102.htm)
EX-99.1 (d100115dex991.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: d100115d8k.htm · Sequence: 1
8-K
0000075252 false 0000075252 2026-06-09 2026-06-09
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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 9, 2026
Accendra Health, Inc.
(Exact name of registrant as specified in its charter)
Virginia
001-09810
54-1701843
(State or other jurisdiction of
incorporation or organization)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
4435 Waterfront Drive, Suite 300,
Glen Allen, Virginia
23060
(Address of principal executive offices)
(Zip Code)
Post Office Box 27626,
Richmond, Virginia
23261-7626
(Mailing address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including area code (804) 277-4304
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, $2 par value per share
ACH
New York Stock Exchange
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 (see General Instruction A.2. below):
☐
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))
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. ☐
Explanatory Note
Early Results and Early Settlement of Exchange Offers
On June 10, 2026, Accendra Health, Inc. (the “Company”) announced the early results of its previously announced offers to exchange (the “Exchange Offers”) and consent solicitations (the “Consent Solicitations”) for any and all of the Company’s outstanding 4.500% Senior Notes due 2029 (the “2029 Notes”) and 6.625% Senior Notes due 2030 (the “2030 Notes” and, together with the 2029 Notes, the “Existing Notes”). In exchange for the Existing Notes, the Company offered or is offering, as applicable: (i) newly issued 9.000% Senior Secured First Lien Notes due 2032 (the “First Lien Notes”) to holders that participated in the new money issuance of the First Lien Notes (such new money issuance, together with the Exchange Offers, the “Offers”) and (ii) newly issued 9.750% Senior Secured Second Lien Notes due 2033 (the “Second Lien Notes” and, together with the First Lien Notes, the “New Notes”).
Based on the early results as of 5:00 P.M., New York City time, on June 9, 2026 (the “Early Exchange Time”), eligible holders had validly tendered and not validly withdrawn tenders and related consents for approximately $478.3 million aggregate principal amount of 2029 Notes, representing approximately 99.9% of the outstanding principal amount of the 2029 Notes, and $547.9 million aggregate principal amount of 2030 Notes, representing approximately 99.2% of the outstanding principal amount of the 2030 Notes, in the Exchange Offers and Consent Solicitations (collectively, the “Early Tendered Notes”).
Accordingly, the Company received sufficient consents to adopt certain amendments (the “Amendments”) to the indentures governing the Existing Notes (the “Existing Notes Indentures”) to eliminate substantially all of the affirmative and negative covenants, eliminate certain events of default, modify covenants regarding mergers and consolidations and modify or eliminate certain other provisions contained in each of the Existing Notes Indentures, including provisions related to defeasance. On June 9, 2026 the Company entered into supplemental indentures to the Existing Notes Indentures (the “Existing Notes Supplemental Indentures”) to effectuate the Amendments.
The Early Tendered Notes were subsequently accepted and cancelled, and the Existing Notes Supplemental Indentures became operative on June 15, 2026. Following such cancellation, $363,000 in aggregate principal amount of the 2029 Notes and $4,257,000 in aggregate principal amount of the 2030 Notes remain outstanding.
In connection with the early settlement of the Exchange Offers, on June 15, 2026 (the “Early Settlement Date”), the Company issued (i) $213.0 million in aggregate principal amount of First Lien Notes and (ii) $698.0 million in aggregate principal amount of Second Lien Notes, in exchange for the validly tendered and accepted Early Tendered Notes, and issued $326.25 million in aggregate principal amount of First Lien Notes in the new money issuance, for a total of $539.25 million First Lien Notes. In addition, holders of Early Tendered Notes accepted for exchange, received accrued and unpaid interest on such Early Tendered Notes from, and including, the most recent interest payment date to, but excluding, the Early Settlement Date.
For the remaining holders of Existing Notes that did not tender their Existing Notes prior to the Early Exchange Time, the Exchange Offers will expire at 5:00 P.M., New York City time, on June 23, 2026 (such time and date, as the same may be extended, the “Expiration Time”), unless extended or earlier terminated. The withdrawal deadline for the Exchange Offers and Consent Solicitations occurred at 5:00 P.M., New York City time, on June 9, 2026 (the “Withdrawal Deadline”). As a result, and because the Withdrawal Deadline is not being extended, tenders of the Existing Notes may no longer be withdrawn, except in limited circumstances where additional withdrawal rights are required by law. If all conditions to the Exchange Offers have been or are concurrently satisfied or waived at or prior to the Expiration Time, unless extended, the Company will accept for exchange any remaining Existing Notes that are validly tendered in the Exchange Offers following the Early Exchange Time and at or prior to the Expiration Time (the date of such exchange, the “Final Settlement Date”). The Final Settlement Date, if any, will be promptly after the Expiration Time and is currently expected to occur on June 25, 2026, the second business day immediately following the Expiration Time.
Item 1.01.
Entry Into a Material Definitive Agreement
The information set forth in the Explanatory Note of this Current Report on Form 8-K (this “Current Report”) is incorporated into this Item 1.01 by reference.
New Notes Indentures and New Notes
Overview
The First Lien Notes issued as part of the new money issuance and delivered in exchange for the 2029 Notes tendered prior to the Early Exchange Time were issued pursuant to the Indenture, dated June 15, 2026 (the “First Lien Indenture”), by and among the Company, the guarantors named therein and Regions Bank, as trustee (in such capacity, the “First Lien Trustee”) and as collateral agent (in such capacity, the “First Lien Collateral Agent”) and the Second Lien Notes delivered in exchange for the Early Tendered Notes were, and any Second Lien Notes delivered in exchange for any remaining Existing Notes that are validly tendered in the Exchange Offers following the Early Exchange Time and at or prior to the Expiration Time will be, issued pursuant to the Indenture, dated June 15, 2026 (the “Second Lien Indenture” and, together with the First Lien Indenture, the “New Indentures”), by and among the Company, the guarantors named therein and Regions Bank, as trustee (in such capacity, the “Second Lien Trustee” and, together with the First Lien Trustee, the “Trustees”) and as collateral agent (in such capacity, the “Second Lien Collateral Agent” and, together with the First Lien Collateral Agent, the “Collateral Agents”).
Interest; Ranking; Security; Guarantees
The First Lien Notes bear interest at a rate of 9.000% per year, payable semi-annually in cash in arrears on June 15 and December 15 of each year, commencing December 15, 2026. The Second Lien Notes bear interest at a rate of 9.750% per year, payable semi-annually in cash in arrears on June 15 and December 15 of each year, commencing December 15, 2026.
The New Notes are our general senior obligations, and the First Lien Notes are secured by a first-priority lien on the collateral securing the First Lien Notes, while the Second Lien Notes are secured by a second-priority lien on the collateral securing the Second Lien Notes, in each case, subject to permitted liens and certain exceptions on substantially all of our and the guarantors’ existing and future assets other than excluded property that secure the Company’s credit facilities.
The First Lien Notes are pari passu in right of payment with any of our existing and future senior indebtedness, including indebtedness under the Company’s credit facilities, the Second Lien Notes and the Existing Notes. The First Lien Notes are pari passu as to the collateral owned by us with our indebtedness under the credit facilities and all of our future indebtedness secured by a first-priority lien on the collateral securing the First Lien Notes, effectively senior to all of our existing and future unsecured indebtedness (including the Existing Notes) and junior lien obligations (including the Second Lien Notes), to the extent of the value of the collateral securing the First Lien Notes, effectively subordinated to any of our existing or future indebtedness that is secured by liens on assets that do not constitute a part of the collateral to the extent of the value of such assets, senior in right of payment to any of our future subordinated indebtedness and structurally subordinated to any existing and future indebtedness and other liabilities of our subsidiaries that are not guarantors.
The Second Lien Notes are pari passu in right of payment with any of our existing and future senior indebtedness, including indebtedness under the Company’s credit facilities, the First Lien Notes and the Existing Notes. The Second Lien Notes are junior as to the collateral owned by us with our indebtedness under the credit facilities and pari passu as to all of our future indebtedness secured by a second-priority lien on the collateral securing the Second Lien Notes, effectively senior to all of our existing and future unsecured indebtedness (including the Existing Notes) and junior lien obligations, to the extent of the value of the collateral securing the Second Lien Notes, effectively subordinated to any of our existing or future indebtedness that is secured by liens on assets that do not constitute a part of the collateral to the extent of the value of such assets, senior in right of payment to any of our future subordinated indebtedness and structurally subordinated to any existing and future indebtedness and other liabilities of our subsidiaries that are not guarantors.
Subject to certain exceptions, the Company’s existing and future wholly-owned domestic subsidiaries (including each subsidiary guarantor of the Existing Notes) guarantee our obligations under the First Lien Notes and Second Lien Notes on a senior secured basis.
Optional Redemption
The Company may, at its option, redeem at any time and from time to time, all or part of the First Lien Notes, prior to June 15, 2029, at a price equal to 100% of the principal amount of the First Lien Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, plus a “make-whole” premium, as described in the First Lien Indenture. On and after June 15, 2029, the Company may redeem all or part of the First Lien Notes at the applicable redemption prices described in the First Lien Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
The Company may also redeem up to 40% of the aggregate principal amount of First Lien Notes at any time prior to June 15, 2029, at a redemption price equal to 109.000% with an amount equal to or less than the net cash proceeds from certain equity offerings, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. At any time prior to June 15, 2029, the Company may also redeem the First Lien Notes upon the consummation of a Change of Control (as defined in the First Lien Indenture), at a redemption price equal to 103% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
The Company may, at its option, redeem at any time and from time to time, all or part of the Second Lien Notes, prior to June 15, 2029, at a price equal to 100% of the principal amount of the Second Lien Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, plus a “make-whole” premium, as described in the Second Lien Indenture. On and after June 15, 2029, the Company may redeem all or part of the Second Lien Notes at the applicable redemption prices described in the Second Lien Indenture, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.
The Company may also redeem up to 40% of the aggregate principal amount of Second Lien Notes at any time prior to June 15, 2029, at a redemption price equal to 109.750% with an amount equal to or less than the net cash proceeds from certain equity offerings, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. At any time prior to June 15, 2029, the Company may also redeem the Second Lien Notes upon the consummation of a Change of Control (as defined in the Second Lien Indenture), at a redemption price equal to 103% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the redemption date.
Change of Control
Subject to certain limitations, in the event of a Change of Control (as defined in the First Lien Indenture), the Company will be required to offer to repurchase the New Notes from holders at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date.
Subject to certain limitations, in the event of a Change of Control (as defined in the Second Lien Indenture), the Company will be required to offer to repurchase the New Notes from holders at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the repurchase date.
Covenants; Events of Default
The New Indentures contain certain covenants, including, among other things, covenants that restrict the ability of the Company and its restricted subsidiaries to incur or guarantee additional indebtedness or issue disqualified stock or certain preferred stock, pay dividends and make other distributions or repurchase stock, make certain investments, make certain payments of junior indebtedness, create or incur liens, sell certain assets, enter into restrictions affecting the ability of restricted subsidiaries to make distributions, loans or advances or transfer assets to the Company or the guarantors, enter into certain transactions with the Company’s affiliates, designate restricted subsidiaries as unrestricted subsidiaries, merge, consolidate or transfer or sell all or substantially all of the Company’s or the guarantors’ assets and consummate a liability management transaction. These covenants are subject to a number of important limitations and exceptions. Most of these covenants will not apply to the Company and its restricted subsidiaries during any period in which the New Notes are rated investment grade by any two of Moody’s Investors Service, Inc., S&P Global Ratings and Fitch Inc.
The New Indentures also contain customary provisions for events of default including, but not limited to, for failure to pay principal or interest when due and payable, failure to comply with covenants or agreements in the New Indentures or the New Notes and failure to cure or obtain a waiver of such default upon notice, failure of any liens created by the New Notes collateral documents on any material portion of the collateral intended to be covered to be valid and perfected, and events of bankruptcy, insolvency or reorganization affecting the Company and certain of its subsidiaries. In the case of an event of default, the principal amount of the New Notes plus accrued and unpaid interest, if any, may be accelerated.
The foregoing description of the New Notes and the New Indentures in this Current Report are summaries and are qualified in their entirety by reference to the full text of the New Indentures and the form of New Notes included therein. The New Indentures are filed hereto as Exhibits 4.1 and 4.3 and the form of global notes representing the New Notes are filed hereto as Exhibits 4.2 and 4.4, and are incorporated by reference herein.
Supplemental Indentures for Existing Notes
Following receipt of the requisite consents in the Consent Solicitations to adopt the Amendments to the Existing Note Indentures, the Company entered into the Existing Notes Supplemental Indentures on June 9, 2026, which became operative in connection with the acceptance and cancellation of the Early Tendered Notes on June 15, 2026.
The foregoing description of the Existing Notes Supplemental Indentures in this Current Report are summaries and are qualified in their entirety by reference to the full text of the Existing Notes Supplemental Indentures, which are filed as Exhibits 4.5 and 4.6 to this Current Report and are incorporated by reference.
Fourth Amendment to Credit Agreement and Consent
On June 15, 2026, the Company, as parent borrower (the “Parent Borrower”), Barista Acquisition I, LLC, Barista Acquisition II, LLC, Byram Healthcare Centers, Inc. and Apria, Inc. (together with the Parent Borrower, the “Borrowers”) and the guarantors party thereto (together with the Borrowers, the “Loan Parties”), entered into that certain Amendment No. 4 to Credit Agreement and Consent (the “Fourth Amendment”) with each lender party thereto and Bank of America, N.A., as administrative agent, collateral agent, letter of credit issuer and swingline lender, thereby amending that certain Credit Agreement, initially dated March 10, 2021 (as amended, restated, amended and restated, modified, extended, replaced or supplemented prior to the date hereof, and as further amended by the Fourth Amendment, the “Revolving Credit Agreement”), by and among, inter alios, the Company and Bank of America, N.A.
Pursuant to the Fourth Amendment, a new $300.0 million revolving credit facility (with the last $50 million available only in connection with mergers and acquisitions, and subject to compliance with certain leverage ratios) (the “New Revolving Credit Facility”) due in 2030, subject to a springing maturity of 91 days inside intervening maturities of certain indebtedness in excess of $25.0 million in aggregate principal amount, was established and the existing revolving credit facility thereunder was cancelled.
The interest rate on the New Revolving Credit Facility will be based on either the applicable SOFR rate or the base rate plus an applicable rate which vary depending on the Total Leverage Covenant Ratio (as defined in the Revolving Credit Agreement). The commitment fee on the unutilized revolving credit commitments under the New Revolving Credit Facility will vary depending on the Total Leverage Covenant Ratio and the current Debt Ratings (each as defined in the Revolving Credit Agreement). The Revolving Credit Agreement contains certain conditions to utilization and we shall not be permitted to utilize the New Revolving Credit Facility above an amount that would result in us having more than $50 million of unrestricted cash on our consolidated balance sheet (after giving effect to certain anticipated payments) immediately after giving effect to such borrowing.
The Revolving Credit Agreement is secured by first-priority liens and security interests in (a) all present and future shares of capital stock owned by the loan parties in the Loan Parties’ present and future subsidiaries and (b) all present and future personal property and assets of the Loan Parties, subject to certain exceptions. The security interests are subject to the Pari Passu First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement (each as defined in the Revolving Credit Agreement).
The Revolving Credit Agreement requires us to maintain a Total Leverage Covenant Ratio (as defined in the Revolving Credit Agreement) of less than 5.50:1.00 in respect of test periods ending prior to January 1, 2028 and less than 4.50:1:00 (or 5.00:1.00 for the first four fiscal quarters following the date of certain qualifying acquisitions) in respect of test periods ending thereafter. The Revolving Credit Agreement requires us to maintain a consolidated interest coverage ratio of greater than or equal to 2.00:1.00, including on a pro forma basis in the event of an acquisition or divestiture.
The Revolving Credit Agreement contains covenants that, among other things, limit our ability and the ability of our restricted subsidiaries to incur or guarantee additional indebtedness or issue disqualified stock, pay dividends and make other distributions or repurchase stock, make certain investments, make certain payments of junior indebtedness, create or incur liens, sell assets, enter into restrictions affecting the ability of restricted subsidiaries to make distributions, loans or advances or transfer assets to the issuer or the guarantors, enter into certain transactions with the issuer’s affiliates, designate restricted subsidiaries as unrestricted subsidiaries, and merge, consolidate or transfer or sell all or substantially all of the Company’s or a restricted subsidiary’s assets.
The Revolving Credit Agreement also contains affirmative covenants customary for credit facilities of this nature, including as to compliance with laws, maintenance of required insurance, payment of taxes, delivery of quarterly and annual financial statements, and maintenance and operation of property. In addition, the Revolving Credit Agreement contains customary events of default, including as to non-payment, cross-defaults, failure to comply with financial covenants and other covenants, bankruptcy and insolvency events, judgments, invalidity of collateral or guarantees, changes of control and ERISA-related events.
Each of these affirmative and negative covenants and events of default is subject to certain important limitations and exceptions.
The foregoing description of the Fourth Amendment is a summary and is qualified in its entirety by reference to the full text of the Fourth Amendment, which is filed as Exhibit 10.1 to this Current Report and incorporated by reference herein.
Second Amendment to Term Loan Credit Agreement and Consent
On June 15, 2026, the Parent Borrower and Loan Parties, entered into that certain Amendment No. 2 to the Term Loan Credit Agreement and Consent (“Second Amendment”) with each consenting Term A-1 Term Lender party thereto, each consenting Term B-1 Term Lender party thereto and JPMorgan Chase Bank, N.A. as administrative agent and collateral agent, thereby amending that certain Term Loan Credit Agreement, initially dated March 29, 2022 (as amended, restated, amended and restated, modified, extended, replaced or supplemented prior to the date hereof, and as further amended by the Fourth Amendment, the “Term Loan Credit Agreement”) by and among, inter alios, the Company and JPMorgan Chase Bank, N.A..
Pursuant to the Second Amendment, the applicable consenting lenders consented to: (i) a waiver of the mandatory prepayment provisions set forth in the Term Loan Credit Agreement in relation to certain asset sales with an aggregate amount of net cash proceeds equal to $400.0 million, (ii) the transactions contemplated by the Offers and Consent Solicitations, including the issuance of the New Notes and the granting of the liens in connection therewith, (iii) making certain modifications to the affirmative and negative covenants set forth in the Term Loan Credit Agreement (including with respect to covenants, “baskets,” exceptions, thresholds and qualifiers), and (iv) certain amendments to the intercreditor arrangements applicable to the Term Loan Credit Agreement.
The foregoing description of the Second Amendment is a summary and is qualified in its entirety by reference to the full text of the Second Amendment, which is filed as Exhibit 10.2 to this Current Report and incorporated by reference herein.
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 the Explanatory Note and in Item 1.01 of this Current Report is incorporated into this Item 2.03 by reference.
Item 8.01.
Other Events.
On June 10, 2026, the Company issued a press release announcing the early results of the Exchange Offers and Consent Solicitations, which is filed hereto as Exhibit 99.1 and incorporated by reference herein.
Cautionary Note Regarding the Exchange Offers
The Exchange Offers are subject to the satisfaction or waiver of a number of conditions. The Company reserves the right, in its sole discretion, to amend the terms of the Exchange Offers. The Exchange Offers may not be completed as contemplated or at all. If the Company is unable to complete the Exchange Offers or any other alternative transactions, on favorable terms or at all, due to market conditions or otherwise, its financial condition could be materially adversely affected.
This Current Report is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote, consent or approval in any jurisdiction in connection with the Exchange Offers, or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. In particular, this Current Report is not an offer of securities for sale into the United States. The New Notes and the related guarantees to be offered have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any state securities laws, and unless so registered, New Notes and the related guarantees may not be offered or sold in the United States or to any U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
Forward-Looking Statements
This Current Report contains certain statements that constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include all statements that do not relate solely to historical or current facts, including but not limited to, statements regarding our expectations regarding the proposed transactions, the future performance and financial results of the Company’s business and other non-historical statements. Some of these statements can be identified by terms and phrases such as “outlook,” “believes,” “expects,” “potential,” “continues,” “may,” “will,” “should,” “could,” “seeks,” “predicts,” “intends,” “trends,” “plans,” “estimates,” “anticipates” or the negative version of these words or other comparable words. The Company cautions readers of this communication that such “forward looking statements,” wherever they occur in this communication or in other statements attributable to the Company, are necessarily estimates reflecting the judgment of the Company’s senior management and involve a number of risks and uncertainties that could cause actual results to differ materially from those suggested by the “forward-looking statements.”
Factors that could cause the Company’s actual results to differ materially from those expressed or implied in such forward-looking statements include, but are not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction; the failure to satisfy other conditions to completion of the transaction; risks related to disruption of management’s attention from the Company’s ongoing business operations due to the transaction; the effect of the announcement of the transaction on the Company’s relationships with its customers, suppliers and other third parties, as well as its operating results and business generally; and the risk that the transaction will not be consummated in a timely manner; exceeding the expected costs of the transaction.
Additional factors that could cause the Company’s actual outcomes or results to differ materially from those described in the forward-looking statements can be found in the “Risk Factors” sections of our most recent Annual Report on Form 10-K for the period ended December 31, 2025, as such factors may be further updated from time to time in the Company’s other filings with the SEC. These reports are or will be accessible on the SEC’s website at
www.sec.gov. These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this Current Report and in the Company’s filings with the SEC. The Company undertakes no obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise, except as required by law.
Item 9.01.
Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number
Description
4.1
First Lien Indenture, dated as of June 15, 2026, by and among the Company, the guarantors named therein and Regions Bank, as trustee and as collateral agent.
4.2
Form of Global Note for the 9.000% Senior Secured Notes due 2032 (included as Exhibit A to Exhibit 4.1 hereto).
4.3
Second Lien Indenture, dated as of June 15, 2026, by and among the Company, the guarantors named therein and Regions Bank, as trustee and as collateral agent.
4.4
Form of Global Note for the 9.750% Senior Secured Notes due 2033 (included as Exhibit A to Exhibit 4.3 hereto).
4.5
Second Supplemental Indenture, dated as of June 9, 2026, by and among the Company, the guarantors party thereto and Regions Bank, as trustee, to the Indenture dated as of March 10, 2021.
4.6
Second Supplemental Indenture, dated as of June 9, 2026, by and among the Company, the guarantors party thereto and Regions Bank, as trustee, to the Indenture dated as of March 29, 2022.
10.1
Amendment No. 4 to Credit Agreement and Consent, dated June 15, 2026, by and among the Company, as Parent Borrower, the other borrowers party thereto, the guarantors party thereto, each consenting lender party thereto and Bank of America, N.A., as administrative agent, collateral agent, letter of credit issuer and swingline lender.*
10.2
Amendment No. 2 to Term Loan Credit Agreement and Consent, dated June 15, 2026, by and among the Company, as Parent Borrower, the other borrowers party thereto, the guarantors party thereto, each consenting Term A-1 Term Lender party thereto, each consenting Term B-1 Term Lender party thereto and JPMorgan Chase Bank, N.A. as administrative agent and collateral agent.*
99.1
Press Release dated June 10, 2026.
104
Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document).
*
Schedules and Exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant hereby agrees to supplementally furnish to the SEC upon request any omitted schedule or exhibit.
SIGNATURE
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.
ACCENDRA HEALTH, INC.
/s/ Heath H. Galloway
June 15, 2026
Heath H. Galloway
Executive Vice President, General Counsel and Corporate Secretary
EX-4.1
EX-4.1
Filename: d100115dex41.htm · Sequence: 2
EX-4.1
Exhibit 4.1
ACCENDRA HEALTH, INC.,
the
GUARANTORS party hereto from time to time
AND
REGIONS BANK,
as Trustee and
Notes Collateral Agent
9.000% Senior Secured First Lien Notes due 2032
INDENTURE
Dated as of
June 15, 2026
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
1
Section 1.2
Other Definitions
72
Section 1.3
[Reserved]
73
Section 1.4
Rules of Construction
74
ARTICLE II
THE NOTES
Section 2.1
Form, Dating and Terms
76
Section 2.2
Execution and Authentication
83
Section 2.3
Registrar and Paying Agent
84
Section 2.4
Paying Agent to Hold Money in Trust
85
Section 2.5
Holder Lists
85
Section 2.6
Transfer and Exchange
85
Section 2.7
[Reserved]
89
Section 2.8
[Reserved]
89
Section 2.9
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
89
Section 2.10
[Reserved]
90
Section 2.11
Mutilated, Destroyed, Lost or Stolen Notes
90
Section 2.12
Outstanding Notes
91
Section 2.13
Temporary Notes
92
Section 2.14
Cancellation
92
Section 2.15
Payment of Interest; Defaulted Interest
92
Section 2.16
CUSIP and ISIN Numbers
93
ARTICLE III
COVENANTS
Section 3.1
Payment of Notes
94
Section 3.2
Limitation on Indebtedness
94
Section 3.3
Limitation on Restricted Payments
102
Section 3.4
Limitation on Restrictions on Distributions from Restricted Subsidiaries
111
Section 3.5
Limitation on Sales of Assets and Subsidiary Stock
114
Section 3.6
Limitation on Liens
119
Section 3.7
Additional Guarantees
119
Section 3.8
Limitation on Affiliate Transactions
120
Section 3.9
Change of Control
124
Section 3.10
Reports
127
Section 3.11
[Reserved]
130
i
Section 3.12
Maintenance of Office or Agency
130
Section 3.13
[Reserved]
130
Section 3.14
[Reserved]
130
Section 3.15
[Reserved]
130
Section 3.16
Compliance Certificate
130
Section 3.17
Further Instruments and Acts
130
Section 3.18
Limitations on Dispositions of Material Collateral
131
Section 3.19
Statement by Officers as to Default
131
Section 3.20
Designation of Restricted and Unrestricted Subsidiaries
131
Section 3.21
Suspension of Certain Covenants on Achievement of Investment Grade Status
132
Section 3.22
Liability Management Transactions
133
Section 3.23
After-Acquired Collateral
133
Section 3.24
Further Assurances
134
ARTICLE IV
SUCCESSOR COMPANY; SUCCESSOR PERSON
Section 4.1
Merger, Amalgamation and Consolidation
134
ARTICLE V
REDEMPTION OF SECURITIES
Section 5.1
Notices to Trustee
137
Section 5.2
Selection of Notes to Be Redeemed or Purchased
137
Section 5.3
Notice of Redemption
138
Section 5.4
[Reserved]
139
Section 5.5
Deposit of Redemption or Purchase Price
139
Section 5.6
Notes Redeemed or Purchased in Part
139
Section 5.7
Optional Redemption
140
Section 5.8
Mandatory Redemption
141
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1
Events of Default
142
Section 6.2
Acceleration
146
Section 6.3
Other Remedies
147
Section 6.4
Waiver of Past Defaults
147
Section 6.5
Control by Majority
148
Section 6.6
Limitation on Suits
148
Section 6.7
Rights of Holders to Receive Payment
148
Section 6.8
Collection Suit by Trustee
149
Section 6.9
Trustee May File Proofs of Claim
149
Section 6.10
Priorities
149
Section 6.11
Undertaking for Costs
150
ii
ARTICLE VII
TRUSTEE
Section 7.1
Duties of Trustee
150
Section 7.2
Rights of Trustee
151
Section 7.3
Individual Rights of Trustee
154
Section 7.4
Trustee’s Disclaimer
154
Section 7.5
Notice of Defaults
154
Section 7.6
Monies to Be Held in Trust
154
Section 7.7
Compensation and Indemnity
154
Section 7.8
Replacement of Trustee
156
Section 7.9
Successor Trustee or Notes Collateral Agent by Merger
156
Section 7.10
Eligibility; Disqualification
157
Section 7.11
Notes Collateral Documents
157
Section 7.12
Trustee’s Application for Instruction from the Issuer
158
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance
158
Section 8.2
Legal Defeasance and Discharge
158
Section 8.3
Covenant Defeasance
159
Section 8.4
Conditions to Legal or Covenant Defeasance
159
Section 8.5
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
161
Section 8.6
Repayment to the Issuer
161
Section 8.7
Reinstatement
162
ARTICLE IX
AMENDMENTS
Section 9.1
Without Consent of Holders
162
Section 9.2
With Consent of Holders
164
Section 9.3
[Reserved]
166
Section 9.4
Revocation and Effect of Consents and Waivers
166
Section 9.5
Notation on or Exchange of Notes
166
Section 9.6
Trustee and the Notes Collateral Agent to Sign Amendments
167
ARTICLE X
GUARANTEE
Section 10.1
Guarantee
167
Section 10.2
Limitation on Liability; Termination, Release and Discharge
169
Section 10.3
Right of Contribution
170
Section 10.4
No Subrogation
170
iii
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1
Satisfaction and Discharge
171
Section 11.2
Application of Trust Money
172
ARTICLE XII
SECURITY
Section 12.1
Notes Collateral Documents
172
Section 12.2
Release of Collateral
174
Section 12.3
Suits to Protect the Collateral
175
Section 12.4
Authorization of Receipt of Funds by the Trustee Under the Notes Collateral Documents
176
Section 12.5
Purchaser Protected
176
Section 12.6
Powers Exercisable by Receiver or Trustee
176
Section 12.7
Notes Collateral Agent
176
ARTICLE XIII
MISCELLANEOUS
Section 13.1
Notices
182
Section 13.2
Certificate and Opinion as to Conditions Precedent
183
Section 13.3
Statements Required in Certificate or Opinion
183
Section 13.4
When Notes Disregarded
184
Section 13.5
Rules by Trustee, Paying Agent and Registrar
184
Section 13.6
Legal Holidays
184
Section 13.7
Governing Law
184
Section 13.8
Jurisdiction
184
Section 13.9
Waivers of Jury Trial
185
Section 13.10
USA PATRIOT Act
185
Section 13.11
No Recourse Against Others
185
Section 13.12
Successors
185
Section 13.13
Counterparts; Electronic Signatures
185
Section 13.14
Table of Contents; Headings
186
Section 13.15
Force Majeure
186
Section 13.16
Severability
186
Section 13.17
Intercreditor Agreements
186
Section 13.18
Waiver of Immunities
187
Section 13.19
Judgment Currency
187
EXHIBIT A Form of Global Restricted Note
EXHIBIT B Form of Supplemental Indenture to Add Guarantors
iv
INDENTURE dated as of June 15, 2026, by and between ACCENDRA HEALTH, INC. (the
“Issuer” or the “Company”), a Virginia corporation, each of the Guarantors (as defined herein) listed on the signature pages hereto, and REGIONS BANK, a banking institution organized and existing under the laws
of the State of Alabama, as Trustee and Notes Collateral Agent.
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of (i) its 9.000% Senior
Secured First Lien Notes due 2032 issued on the date hereof in an aggregate principal amount of $539,249,947 (the “Initial Notes”) and (ii) any additional Notes (“Additional Notes” and, together with the
Initial Notes, the “Notes”) that may be issued after the Issue Date;
WHEREAS, on the Issue Date, the Notes will be
guaranteed on a senior basis by each Initial Guarantor (as defined herein) pursuant to the terms of this Indenture;
WHEREAS, the Notes
Obligations will be secured by the Collateral (as defined herein);
WHEREAS, all things necessary (i) to make the Notes, when
executed and duly issued by the Issuer and authenticated and delivered hereunder, the valid obligations of the Issuer, and (ii) to make this Indenture a valid agreement of the Issuer and the Guarantors have been done; and
NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2029 Notes” means the Company’s 4.500% Senior Notes due 2029 issued under the 2029 Notes Indenture.
“2029 Notes Indenture” means the indenture governing the 2029 Notes, dated as of March 10, 2021, as amended, among the
Company, the guarantors party thereto from time to time and Regions Bank, as trustee.
“2030 Notes” means the
Company’s 6.625% Senior Notes due 2030 issued under the 2030 Notes Indenture.
“2030 Notes Indenture” means the
indenture governing the 2030 Notes, dated as of March 29, 2022, as amended, among the Company, the guarantors party thereto from time to time and Regions Bank, as trustee.
“Accendra Executive Deferred Compensation Trust” means Accendra Health Inc. Executive Deferred Compensation Trust and its
successors and assigns.
1
“Accendra Health Foundation” means Accendra Health Foundation and its
successors and assigns.
“Acquired Indebtedness” means with respect to any Person (x) Indebtedness of any other
Person or any of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary or merges or amalgamates with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary and
(y) Indebtedness secured by a Lien encumbering any asset acquired by such Person. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (x) of the preceding sentence, on the date such Person becomes a
Restricted Subsidiary or on the date of the relevant merger, amalgamation, consolidation, acquisition or other combination.
“Additional Assets” means:
(1)
any property or assets (other than Capital Stock) used or to be used by the Company, a Restricted Subsidiary or
otherwise useful in a Similar Business (it being understood that capital expenditures on property or assets already used in a Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an
investment in Additional Assets);
(2)
the Capital Stock of a Person that is engaged in a Similar Business and becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or
(3)
Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary.
“Additional First Lien Obligations” means any Indebtedness having Pari Passu Lien Priority relative
to the Notes with respect to all or a portion of the Collateral whose Collateral Agent has become a party (whether by joinder or otherwise) to the First Lien Intercreditor Agreement.
“Additional First Lien Secured Parties” means the holders of any other Series of Additional First Lien Obligations and any
Collateral Agent with respect thereof and the beneficiaries of the indemnification obligations thereunder.
“Additional Junior
Lien Obligations” means any Indebtedness having Junior Lien Priority relative to the Notes with respect to all or a portion of the Collateral whose Collateral Agent has become a party (whether by joinder or otherwise) to the Junior Lien
Intercreditor Agreement.
“Additional Junior Lien Secured Parties” means the holders of any other Series of Additional
Junior Lien Obligations and any Collateral Agent with respect thereof and the beneficiaries of the indemnification obligations thereunder.
“Additional Notes” has the meaning ascribed to it in the recitals of this Indenture.
“Additional Second Lien Obligations” means any Indebtedness having Pari Passu Lien Priority relative to the Second Lien
Notes with respect to all or a portion of the Collateral whose Collateral Agent has become a party (whether by joinder or otherwise) to the Junior Lien Intercreditor Agreement.
2
“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. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Alternative Currency” means any currency (other than U.S. dollars) that is a lawful currency (other than U.S. dollars)
that is readily available and freely transferable and convertible into U.S. dollars (as determined in good faith by the Company).
“Applicable Premium” means the greater of (A) 1.0% of the principal amount of such Note and (B) on any Redemption Date
(as defined herein), the excess (to the extent positive) of:
(a)
the present value at such Redemption Date of (i) the redemption price of such Note at June 15, 2029
(such redemption price (expressed in percentage of principal amount) being set forth in the table under Section 5.7(e) (excluding accrued but unpaid interest, if any)), plus (ii) all required interest payments due on
such Note to and including such date set forth in clause (i) (excluding accrued but unpaid interest, if any), computed upon the Redemption Date using a discount rate equal to the Applicable Treasury Rate at such Redemption Date plus 50 basis points;
over
(b)
the outstanding principal amount of such Note;
in each case, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate. The Trustee shall have no duty to
calculate or verify the calculations of the Applicable Premium.
“Applicable Treasury Rate” means the weekly average
rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to the Redemption Date) of the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 with respect to each applicable day during such week (or, if such statistical release is not so
published or available, any publicly available source of similar market data selected by the Company in good faith)) most nearly equal to the period from the Redemption Date to June 15, 2029; provided, however, that if the period from the
Redemption Date to June 15, 2029 is not equal to the constant maturity of a United States Treasury security for which such 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 Redemption Date to such applicable date 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.
3
“Asset Disposition” means:
(a)
the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of
related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Company) (each referred to in this definition as a
“disposition”); or
(b)
the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified
Stock of Restricted Subsidiaries issued in compliance with Section 3.2 hereof or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction
or a series of related transactions;
in each case, other than:
(1)
a disposition by the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary, including
pursuant to any Intercompany License Agreement; provided that that if the transferor of such property is a Note Party, (i) the transferee thereof is another Note Party, (ii) to the extent such transaction constitutes an Investment,
such transaction is a Permitted Investment or an Investment permitted under Section 3.3, or (iii) such disposition shall consist of the transfer of Capital Stock in or Indebtedness of any Foreign Subsidiary to any
other Foreign Subsidiary; provided that, sales, transfers or other dispositions made pursuant to this clause (1) may not be made in connection with any Liability Management Transaction;
(2)
a disposition of cash, Cash Equivalents or Investment Grade Securities, including any marketable securities
portfolio owned by the Company and its Subsidiaries on the Issue Date;
(3)
a disposition of inventory, goods or other assets (including Settlement Assets) in the ordinary course of
business or consistent with past practice or held for sale or no longer used in the ordinary course of business, including any disposition of disposed, abandoned or discontinued operations;
(4)
a disposition of obsolete, worn out, uneconomic, damaged or surplus property, equipment or other assets or
property, equipment or other assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Company and its Restricted Subsidiaries whether now or hereafter owned or leased or acquired
in connection with an acquisition or used or useful in the conduct of the business of the Company and its Restricted Subsidiaries (including by ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use or
maintenance of or putting into the public domain any intellectual property that is, in the reasonable judgment of the Company or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, or in respect of which
the Company or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
4
(5)
transactions permitted under Section 4.1 hereof or a transaction that constitutes a
Change of Control;
(6)
an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Restricted Subsidiary or
as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors;
(7)
any dispositions of Capital Stock, properties or assets in a single transaction or series of related
transactions with a fair market value (as determined in good faith by the Company) of less than the greater of $35 million and 10.0% of LTM EBITDA;
(8)
any Restricted Payment that is permitted to be made, and is made, under Section 3.3
and the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 3.5(a)(3), asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;
(9)
dispositions in connection with Permitted Liens, Permitted Intercompany Activities, and Permitted Tax
Restructuring;
(10)
dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary
course of business or consistent with past practice or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11)
conveyances, sales, transfers, licenses, sub-licenses, cross-licenses
or other dispositions of intellectual property, software or other general intangibles and licenses, sub-licenses, cross-licenses, leases or subleases of other property, in each case, in the ordinary course of
business or consistent with past practice or pursuant to a research or development agreement in which the counterparty to such agreement receives a license in the intellectual property or software that results from such agreement;
(12)
the lease, assignment, license, sub-lease or cross-license of any real
or personal property in the ordinary course of business;
(13)
foreclosure, condemnation, expropriation, forced disposition or any similar action with respect to any property
or other assets or the granting of Liens not prohibited by this Indenture;
(14)
the sale, discount or other disposition (with or without recourse, and on customary or commercially reasonable
terms and for credit management purposes) of inventory, accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts receivable for notes receivable;
5
(15)
any issuance or sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary or
any other disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or any Immaterial Subsidiary;
(16)
any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with
or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such
acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(17)
(i) dispositions of property to the extent that such property is exchanged for credit against the purchase
price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement
property is actually promptly purchased), and (iii) to the extent allowable under Section 1031 of the Code or comparable law or regulation, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(18)
any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with
any Qualified Securitization Financing or Receivables Facility not prohibited by this Indenture, or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent
with past practice;
(19)
so long as no Event of Default has occurred and is continuing (or would result therefrom), any financing
transaction with respect to property constructed, acquired, leased, renewed, relocated, expanded, maintained, upgraded replaced, repaired or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by
the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback Transactions and asset securitizations, not prohibited by this Indenture, with a fair market value (as determined in good faith by the Company) of less than
the greater of $35 million and 10.0% of LTM EBITDA;
(20)
sales, transfers or other dispositions of Investments in joint ventures or similar entities to the extent
required by, or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements;
(21)
any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual,
tort, litigation or other claims of any kind;
(22)
the settlement or unwinding of any Cash Management Services or Hedging Obligations;
6
(23)
[reserved];
(24)
transfers of property or assets subject to Casualty Events upon receipt of the net proceeds of such Casualty
Event; provided that any Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of such Casualty Event shall be deemed to be Net Available Cash of an Asset Disposition, and such Net Available Cash shall be
applied in accordance with Section 3.5;
(25)
any sale of property or assets, if the acquisition of such property or assets was financed with Excluded
Contributions and the Net Cash Proceeds of such sale are used to make a Restricted Payment pursuant to Section 3.3(b)(12)(b);
(26)
the disposition of any assets (including Capital Stock) (i) acquired in a transaction after the Issue
Date, which assets are not useful in the core or principal business of the Company and its Restricted Subsidiaries, or (ii) made in connection with the approval of any applicable antitrust authority or other regulatory approval or otherwise
necessary or advisable in the reasonable determination of the Company to consummate any acquisition;
(27)
any sale, transfer or other disposition to affect the formation of any Subsidiary that is a Delaware Divided
LLC; provided that upon formation of such Delaware Divided LLC, such Delaware Divided LLC shall be a Guarantor if the divided entity was a Guarantor and, otherwise, a Restricted Subsidiary; provided further that any such assets
or properties so sold, transferred or otherwise disposed shall be held by such Guarantor or Restricted Subsidiary, as applicable, the Company or another Guarantor or Restricted Subsidiary, as applicable; and
(28)
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 Company or any Restricted Subsidiary to such Person.
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Disposition and would also be a Permitted
Investment or an Investment permitted under Section 3.3, the Company, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Disposition and/or one or more of the
types of Permitted Investments or Investments permitted under Section 3.3.
“Associate” means
(i) any Person engaged in a Similar Business of which the Company or its Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and (ii) any joint venture entered into by the
Company or any Restricted Subsidiary of the Company.
“Bankruptcy Law” means Title 11 of the United States Code or
similar federal or state law for the relief of debtors.
7
“Board of Directors” means (i) with respect to the Company or any
corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (ii) with respect to any partnership, the board of directors or other governing body of the general partner, as
applicable, of the partnership or any duly authorized committee thereof; (iii) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (iv) with respect to any
other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or
approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). Unless
the context requires otherwise, Board of Directors means the Board of Directors of the Company.
“Business Day” means
each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or in the jurisdiction of the place of payment are authorized or required by law to close. 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 or performance shall extend to the immediately succeeding Business Day and such extension
of time shall not be reflected in computing interest or fees, as the case may be.
“Business Successor” means
(i) any former Subsidiary of the Company and (ii) any Person that, after the Issue Date, has acquired, merged or consolidated with a Subsidiary of the Company (that results in such Subsidiary ceasing to be a Subsidiary of the Company), or
acquired (in one transaction or a series of transactions) all or substantially all of the property and assets or business of a Subsidiary or assets constituting a business unit, line of business or division of a Subsidiary of the Company.
“Capital Stock” of any Person means any and all shares of, rights to purchase or acquire, warrants, options or depositary
receipts for, or other equivalents of or partnership or other interests in (however designated), equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into or exchangeable for such equity.
“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 Company operating for the purpose of (a) insuring the businesses, operations or properties owned or operated by any Parent Entity, the Company or any of its Subsidiaries, including
their future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members), 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 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.
8
“Cash Equivalents” means:
(1)
(a) U.S. dollars, Canadian dollars, Swiss Francs, United Kingdom pounds, Euro or any national currency of any
member state of the European Union on the Issue Date; or (b) any other foreign currency held by the Company and the Restricted Subsidiaries in the ordinary course of business;
(2)
securities issued or directly and fully Guaranteed or insured by the United States, Canadian, Swiss or United
Kingdom governments, a member state of the European Union or, in each case, or any agency or instrumentality thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having
maturities of not more than two years from the date of acquisition;
(3)
certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits, or bankers’
acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender or by any bank or trust company (a) whose commercial paper is rated at least
“A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing
comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in
excess of $100 million;
(4)
repurchase obligations for underlying securities of the types described in clauses (2), (3) and
(7) entered into with any bank meeting the qualifications specified in clause (3) above;
(5)
securities with maturities of one year or less from the date of acquisition backed by standby letters of credit
issued by any Person referenced in clause (3) above;
(6)
commercial paper and variable or fixed rate notes issued by a bank meeting the qualifications specified in
clause (3) above (or by the parent company thereof) maturing within one year after the date of creation thereof or any commercial paper and variable or fixed rate note issued by, or guaranteed by a corporation rated at least (A) “A-1” or higher by S&P or “P-1” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of
another Nationally Recognized Statistical Rating Organization selected by the Company) maturing within two years after the date of creation thereof or (B) “A-2” or higher by S&P or “P-2” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the
Company) maturing within 24 months after the date of creation thereof or, in each case, if no rating is available in respect of the commercial paper or fixed rate notes, the issue of which has an equivalent rating in respect of its long-term debt;
9
(7)
marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either S&P or Moody’s, respectively (or, if at the time, neither is issuing comparable ratings, then a comparable rating
of another Nationally Recognized Statistical Rating Organization selected by the Company), and in each case maturing within 24 months after the date of creation or acquisition thereof;
(8)
readily marketable direct obligations issued by any state, province, commonwealth or territory of the United
States of America, Canada, Switzerland, the United Kingdom, any member state of the European Union or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest ratings categories
obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not
more than two years from the date of creation or acquisition;
(9)
readily marketable direct obligations issued by any foreign government or any political subdivision, taxing
authority or public instrumentality thereof, in each case, having one of the two highest ratings categories obtainable by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another
Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition;
(10)
Investments with average maturities of 12 months or less from the date of acquisition in money market funds
rated within the three highest ratings categories by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the
Company);
(11)
with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which
such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of
investment therein, (ii) certificates of deposit of, bankers’ acceptance of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief
executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least
“A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved
Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(12)
Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher from S&P or
“Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of 24
months or less from the date of acquisition;
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(13)
bills of exchange issued in the United States, Canada, Switzerland, the United Kingdom, a member state of the
European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(14)
investments in money market funds access to which is provided as part of “sweep” accounts
maintained with any bank meeting the qualifications specified in clause (3) above;
(15)
investments in industrial development revenue bonds that (i)
“re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer and (iii) are supported by a
direct pay letter of credit covering principal and accrued interest that is issued by any bank meeting the qualifications specified in clause (3) above;
(16)
investments in pooled funds or investment accounts consisting of investments in the nature described in the
foregoing clause (15);
(17)
Cash Equivalents or instruments similar to those referred to in clauses (1) through (16) above denominated
in U.S. dollars or any Alternative Currency;
(18)
interests in any investment company, money market, enhanced high yield fund or other investment fund which
invests 90% or more of its assets in instruments of the types specified in clauses (1) through (17) above; and
(19)
for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securities
portfolio owned by the Company and its Subsidiaries on the Issue Date.
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 (1) through (9) and clauses
(11) through (14) 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 (1) through (14) and in this
paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in
clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within 10 Business Days following the receipt of such amounts. For the avoidance of doubt,
any items identified as Cash Equivalents under this definition (other than clause (16) above) will be deemed to be Cash Equivalents for all purposes under this Indenture regardless of the treatment of such items under GAAP.
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“Cash Management Obligations” means (1) obligations in respect of
any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements, electronic fund transfer, treasury services and cash management services, including controlled disbursement services, working capital lines, lines of
credit, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services, or other cash management arrangements or any automated clearing house arrangements, (2) other obligations in respect of netting or
setting off arrangements, credit, debit or purchase card programs, stored value card and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and
related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds).
“Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an
overnight draft facility that is not in default): automated clearing house transactions, treasury, depository, credit or debit card, purchasing card, stored value card, electronic fund transfer services and/or cash management services, including,
without limitation, controlled disbursement services, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services or other cash management arrangements in the ordinary course of business or consistent with
past practice.
“Casualty Event” means any event that gives rise to the receipt by the Company or any Restricted
Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, assets or real property (including any improvements thereon) to replace or repair such equipment, assets or real property.
“CFC” means any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of
the Code.
“Change of Control” means:
(1)
the Company 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) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date), other than one or more Permitted Holders or a Parent Entity, that
is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of the Exchange Act as in effect on the Issue Date) of more than 50% of the total
voting power of the Voting Stock of the Company; provided that (x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of
the Voting Stock of the Company unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity)
and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner;
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(2)
the sale or transfer, in one or a series of related transactions, of all or substantially all of the assets of
the Company and its Restricted Subsidiaries, taken as a whole, to a Person (other than the Company or any of its Restricted Subsidiaries or one or more Permitted Holders); or
(3)
any “person” (as defined in clause (1) above), other than one or more Permitted Holders or any
Parent Entity, is or becomes the “beneficial owner” (as so defined) of more than 50% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that
(x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Company unless such Person shall be or become a
beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (y) any Voting Stock of which any Permitted Holder is the
beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a
Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related
thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the
Company 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 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 parent entity (or related contractual
rights) unless it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent
entity 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.
“Code” means the United States Internal Revenue Code of 1986,
as amended.
“Collateral” means any and all property of a Note Party subject (or purported to be subject) to a Lien
securing the Notes Obligations, whether now existing or hereafter acquired, other than Excluded Property.
“Collateral
Agent” means (i) in the case of the Revolving Credit Agreement, the Revolving Credit Agreement Collateral Agent, (ii) in the case of the Term Loan Credit Agreement, the Term Loan Credit Agreement Collateral Agent, (iii) in
the case of the Notes, the Notes Collateral Agent, (iv) in the case of the Second Lien Notes, the Second Lien Notes Collateral Agent, (v) in the case of any other Series of Additional First Lien Obligations that become subject to the First
Lien
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Intercreditor Agreement after the Issue Date, the collateral agent for such Series that becomes a party (whether by joinder or otherwise) to the First Lien Intercreditor Agreement and
(vi) in the case of any other Series of Additional Junior Lien Obligations that become subject to the Junior Lien Intercreditor Agreement after the Issue Date, the collateral agent for such Series named in the applicable joinder agreement to
the Junior Lien Intercreditor Agreement.
“Company” has the meaning assigned to it in the recitals of this Indenture.
“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 amortization or write-off of (i) intangible assets and non-cash organization costs,
(ii) deferred financing and debt issuance fees, costs and expenses, (iii) capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, media development costs, conversion costs
and contract acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities and (iv) capitalized fees related
to any Qualified Securitization Financing or Receivables Facility, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP and any write down of assets or asset value
carried on the balance sheet.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated
Net Income of such Person for such period:
(1)
increased (without duplication) by:
(a)
Fixed Charges of such Person for such period (including
(w) non-cash rent expense, (x) net payments and losses or any obligations on any Hedging Obligations or other derivative instruments, (y) bank, letter of credit and other financing fees and
(z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of “Consolidated Interest Expense” and any non-cash interest expense), to the
extent deducted (and not added back) in computing Consolidated Net Income; plus
(b)
(x) provision for Taxes based on income, profits, revenue or capital, including federal, foreign, state,
provincial, territorial, local, unitary, excise, property, franchise, value added and similar Taxes (such as, but not limited to, Delaware franchise tax, 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, additions to Tax and interest related to such Taxes or arising from Tax examinations) and similar Taxes of
such Person paid or accrued during such period (including in respect of repatriated funds), (y) any distributions made to a Parent Entity with respect to the foregoing and (z) the net tax expense associated with any adjustments made pursuant to
the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
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(c)
Consolidated Depreciation and Amortization Expense of such Person for such period to the extent deducted (and
not added back) in computing Consolidated Net Income; plus
(d)
any fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to
any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions), Permitted Investment, Restricted Payment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted
to be incurred by this Indenture (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Issue Date), including (i) such fees, expenses or charges (including rating agency fees,
consulting fees and other related expenses and/or letter of credit or similar fees) related to the offering or incurrence of, or ongoing administration of the Notes, the Second Lien Notes, the Credit Agreements, any other Credit Facilities, any
Securitization Fees and the Transactions, including Transaction Expenses, and (ii) any amendment, waiver or other modification of the Notes, the Second Lien Notes, the Credit Agreements, Receivables Facilities, Securitization Facilities, any
other Credit Facilities, any Securitization Fees, any other Indebtedness or any Equity Offering, in each case, whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(e)
(i) the amount of any restructuring charge, accrual, reserve (and adjustments to existing reserves) or expense,
integration cost, inventory optimization programs or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives and tax restructurings) that is deducted (and not added back) in
such period in computing Consolidated Net Income, including any costs incurred in connection with acquisitions or divestitures after the Issue Date, any severance, retention, signing bonuses, relocation, recruiting and other employee related costs,
costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employment benefit plans (including any settlement of pension liabilities), costs related to entry into new markets (including unused
warehouse space costs) and new product introductions (including labor costs and scrap costs), systems development and establishment costs, operational and reporting systems, technology initiatives, contract termination costs, future lease
commitments and costs related to the opening and closure and/or consolidation of facilities (including severance, rent termination, moving and legal costs) and to exiting lines of business and consulting fees incurred with any of the foregoing and
(ii) fees, costs and expenses associated with acquisition related litigation and settlement thereof; plus
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(f)
any other non-cash charges, write-downs, expenses, losses or items
reducing Consolidated Net Income for such period including (i) non-cash losses on the sale of assets and any write-offs or write-downs, deferred revenue or impairment charges, (ii) impairment
charges, amortization (or write offs) of financing costs (including debt discount, debt issuance costs and commissions and other fees associated with Indebtedness, including the Notes, the Second Lien Notes and the Credit Agreements) of such Person
and its Subsidiaries and/or (iii) the impact of acquisition method accounting adjustment and any non-cash write-up, write-down or
write-off with respect to re-valuing assets and liabilities in connection with the Transactions or any Investment, deferred revenue or any effects of adjustments
resulting from the application of purchase accounting, purchase price accounting (including any step-up in inventory and loss of profit on the acquired inventory) (provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash items in any future period, (A) the Company may elect not to add back such
non-cash charge, expense or loss in the current period and (B) to the extent the Company elects to add back such non-cash charge, the cash payment in respect
thereof in such future period shall be subtracted from Consolidated EBITDA when paid), or other items classified by the Company as special items less other non-cash items of income increasing Consolidated Net
Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period); plus
(g)
the amount of pro forma “run rate” cost savings (including cost savings with respect to salary,
benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions,
other operating improvements (including the entry into material contracts or arrangements), and initiatives and synergies (including, to the extent applicable, from (i) the Transactions, (ii) the effect of new customer contracts or
projects and/or (iii) increased pricing or volume in existing contracts) (it is understood and agreed that “run rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or
expected to be taken, net of the amount of actual benefits realized during such period from such actions) projected by the Company in good faith to be reasonably anticipated to be realizable or a plan for realization shall have been established
within 24 months of the date thereof (including from any actions taken in whole or in part prior to such date), which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost
savings (including cost savings with respect to salary, benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s
Public Company Costs), operating expense reductions, other operating improvements and initiatives and synergies had
16
been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions; provided that (i) such costs savings are
reasonably identifiable and factually supportable (in the good faith determination of the Company) and (ii) the aggregate increase to Consolidated EBITDA for any period pursuant to this clause (g) shall not exceed 30.0% of Consolidated
EBITDA for such period (calculated after giving effect to any increase pursuant to this clause (g)); plus
(h)
any costs or expenses incurred by the Company or a Restricted Subsidiary or a Parent Entity pursuant to any
management equity plan, stock option plan, phantom equity plan, profits interests or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or
severance agreement, or any stock subscription or equityholder agreement, and any costs or expenses in connection with the roll-over, acceleration or payout of Capital Stock held by management, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Capital Stock (other than Disqualified Stock) of the Company; plus
(i)
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
(j)
any net loss included in the Consolidated Net Income attributable to
non-controlling or minority interests pursuant to the application of Accounting Standards Codification Topic 810-10-45 (or any
successor provision or other financial accounting standard having a similar result or effect); plus
(k)
the amount of any non-controlling or minority interest expense
consisting of Subsidiary income attributable to non-controlling or minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(l)
(i) unrealized or realized foreign exchange losses resulting from the impact of foreign currency changes and
(ii) gains and losses due to fluctuations in currency values and related Tax effects determined in accordance with GAAP; plus
(m)
with respect to any joint venture, an amount equal to the proportion of those items described in clauses (a),
(b) and (c) above relating to such joint venture corresponding to the Company’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a
Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income; plus
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(n)
the amount of any costs, charges or expenses relating to payments made to stock appreciation or similar rights,
stock option, restricted stock, phantom equity, profits interests or other interests or rights holders of the Company or any of its Subsidiaries or any Parent Entity in connection with, or as a result of, any distribution being made to equityholders
of such Person or any of its Subsidiaries or any Parent Entities, which payments are being made to compensate such holders as though they were equityholders at the time of, and entitled to share in, such distribution; plus
(o)
(i) adjustments of the nature or type contained in the Exchange Offering Memorandum and other adjustments of a
similar nature to the foregoing and (ii) any due diligence quality of earnings report from time to time prepared with respect to the target of an acquisition or Investment by a nationally recognized accounting firm; plus
(p)
losses, charges and expenses related to the pre-opening and opening of
new locations, and start-up period prior to opening, that are operated, or to be operated, by the Company or any Restricted Subsidiary; plus
(q)
rent expense as determined in accordance with GAAP not actually paid in cash during such period (net of rent
expense paid in case during such period over and above rent expense as determined in accordance with GAAP); plus
(r)
losses, charges and expenses related to a new location, plant or facility until the date that is 24 months
after the date of commencement of construction or the date of acquisition thereof, as the case may be; plus
(s)
any non-cash increase in expense resulting from the revaluation of
inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments; plus
(t)
(1) the net increase (which, for the avoidance of doubt, shall not be negative), if any, of the difference
between: (i) the deferred revenue of such Person and its Restricted Subsidiaries, as of the last day of such period (the “Determination Date”) and (ii) the deferred revenue of such Person and its Restricted Subsidiaries
as of the date that is 12 months prior to the Determination Date, and (2) without duplication of any adjustment pursuant to clause (1), the net adjustment for the annualized full-year gross profit contribution from new customer contracts signed
during the 12 months prior to the Determination Date; plus
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(u)
any fees, costs and expenses incurred in connection with the adoption or implementation of Accounting Standards
Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect), and any non-cash losses or charges
resulting from the application of Accounting Standards Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect); plus
(v)
any fees, costs, expenses or charges related to or recorded in cost of sales to recognize cost on a last-in-first-out basis; and
(2)
decreased (without duplication) by extraordinary or other
non-recurring, income tax credits or non-cash income 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 Consolidated EBITDA in any prior period.
Notwithstanding the foregoing or anything to the contrary herein, Consolidated EBITDA for each fiscal quarter following the Issue Date through
the fiscal quarter ended December 31, 2026 shall be deemed to be equal to $86.25 million per fiscal quarter.
“Consolidated First Lien Secured Leverage Ratio” means, as of any date of determination, the ratio of (x) Consolidated
Total Indebtedness secured by a Lien on the Collateral as of such date (other than Indebtedness secured by a Lien with a Junior Lien Priority relative to the Notes and the Note Guarantees) to (y) LTM EBITDA.
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1)
consolidated cash interest expense (including that attributable to Finance Lease Obligations) with respect to
all outstanding Indebtedness of such Person and its Restricted Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net payments made (less
net payments received) under Hedging Obligations but excluding, for the avoidance of doubt (i) Securitization Fees, (ii) penalties, additions to Tax and interest relating to Taxes, (iii) annual agency or similar fees paid to the
administrative agents, collateral agents and other agents under any Credit Facility, (iv) any additional interest or liquidated damages owing pursuant to any registration rights obligations, (v) costs associated with obtaining Hedging
Obligations, (vi) accretion or accrual of discounted liabilities other than Indebtedness, (vii) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase
accounting in connection with the Transactions or any acquisition, (viii) amortization, expensing or write-off of deferred financing fees, amendment and consent fees, debt issuance costs, debt discount or
premium, terminated Hedging Obligations and other commissions, fees and expenses, discounted liabilities, original issue discount and any other amounts of non-cash interest and, adjusted to the extent
included, to exclude any refunds or similar credits received in connection with the purchasing or procurement of goods or services under any purchasing card
19
or similar program, (ix) any expensing of bridge, arrangement, structuring, commitment, agency, consent and other financing fees and any other fees related to the Transactions or any
acquisitions after the Issue Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, penalty or cost, (xi) interest expense with respect to Indebtedness of any direct or
indirect parent of such Person resulting from push-down accounting and (xii) any lease, rental or other expense in connection with a Non-Financing Lease Obligations; less
(2)
consolidated interest income for such period.
For purposes of this definition, interest on a Finance 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 Finance Lease Obligation in accordance with GAAP.
“Consolidated Net Income”
means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends; provided, however, that there will not be included in such Consolidated Net Income:
(1)
any net income (loss) of any Person if such Person is not a Restricted Subsidiary (including any net income
(loss) from investments recorded in such Person under the equity method of accounting), except that the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate
amount of cash or Cash Equivalents actually distributed (or to the extent converted into cash or Cash Equivalents) or that (as determined by the Company in its reasonable discretion) could have been distributed by such Person during such period to
the Company or a Restricted Subsidiary as a dividend or other distribution or return on investment;
(2)
solely for the purpose of determining the amount available for Restricted Payments under
Section 3.3(a)(iii)(B) hereof, any net income (loss) of any Restricted Subsidiary (other than the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the Company or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or
governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (a) restrictions that have been waived or otherwise 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), and (b) restrictions pursuant to the Credit Agreements, the Notes, this Indenture, the Second Lien Notes, the Second Lien Notes Indenture or other similar
indebtedness containing substantially similar restrictions), except that the Company’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of
cash or Cash
20
Equivalents actually distributed (or to the extent converted, or having the ability to be converted, into cash or Cash Equivalents) or that could have been distributed by such Restricted
Subsidiary during such period to the Company or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(3)
any gain (or loss) (a) in respect of facilities no longer used or useful in the conduct of the business of
the Company or its Restricted Subsidiaries, abandoned, transferred, closed, disposed or discontinued operations, (b) on disposal, abandonment or discontinuance of disposed, abandoned, transferred, closed or discontinued operations, and
(c) attributable to asset dispositions, abandonments, sales or other dispositions of any asset (including pursuant to any Sale and Leaseback Transaction) or the designation of an Unrestricted Subsidiary other than in the ordinary course of
business;
(4)
(a) any extraordinary, exceptional, unusual or nonrecurring loss, charge or expense, Transaction Expenses,
Public Company Costs, restructuring and duplicative running costs, restructuring charges or reserves (whether or not classified as restructuring expense on the consolidated financial statements), relocation costs,
start-up or initial costs for any project or new production line, division or new line of business, integration and facilities’ or bases’ 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 Company or a Subsidiary or a Parent Entity had
entered into with employees of the Company, a Subsidiary or a Parent Entity, costs relating to pre-opening, opening and conversion costs for facilities, losses, costs or cost inefficiencies related to project
terminations, facility or property disruptions or shutdowns (including due to work stoppages, natural disasters and epidemics), signing, retention and completion bonuses (including management bonus pools), recruiting costs, costs incurred in
connection with any strategic or cost savings initiatives, transition costs, contract terminations, litigation and arbitration fees, costs and charges, expenses in connection with one-time rate changes, costs
incurred with acquisitions, investments and dispositions (including travel and out-of-pocket costs, human resources costs (including relocation bonuses), litigation and
arbitration costs, charges, fees and expenses (including settlements), management transition costs, advertising costs, losses associated with temporary decreases in work volume and expenses related to maintain underutilized personnel) and 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 operating expenses attributable to the
implementation of strategic or cost-savings initiatives, and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates,
valuations and judgments) and professional, legal, accounting, consulting and other service fees incurred with any of the foregoing and (b) any charge, expense, cost, accrual or reserve of any kind associated with acquisition related litigation
and settlements thereof;
21
(5)
(a) at the election of the Company with respect to any quarterly period, the cumulative effect (including
charges, accruals, expenses and reserves) of a change in law, regulation or accounting principles and changes as a result of the adoption, implementation or modification of accounting policies, including the adoption or implementation of last-in-first-out basis accounting standards, (b) subject to the last paragraph of the definition of “GAAP,” the
cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period (including any impact resulting from an election by the Company to apply IFRS or other
Accounting Changes), and (c) any costs, charges, losses, fees or expenses in connection with the implementation or tracking of such changes or modifications specified in the foregoing clauses (a) and (b), in each case as reasonably
determined by the Company;
(6)
(a) any equity-based or non-cash compensation or similar charge, cost
or expense or reduction of revenue, including any such charge, cost, expense or reduction arising from any grant of stock, stock appreciation or similar rights, stock options, restricted stock, phantom equity, profits interests or other interests,
or other rights or equity- or equity-based incentive programs (“equity incentives”), any income (loss) associated with the equity incentives or other long-term incentive compensation plans (including under deferred compensation
arrangements of the Company or any Parent Entity or Subsidiary and any positive investment income with respect to funded deferred compensation account balances), roll-over, acceleration or payout of Capital Stock by employees, directors, officers,
managers, contractors, consultants, advisors or business partners (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Parent Entity or Subsidiary, and any cash awards granted to employees of the
Company and its Subsidiaries in replacement for forfeited awards, (b) any non-cash losses attributable to deferred compensation plans or trusts or realized in such period in connection with adjustments to
any employee benefit plan due to changes in estimates, actuarial assumptions, valuations, studies or judgments, (c) non-cash compensation expense resulting from the application of Accounting Standards
Codification Topic 718, Compensation—Stock Compensation or Accounting Standards Codification Topics 505-50 Equity-Based Payments to Non-Employees (or any successor
provision or other financial accounting standard having a similar result or effect), and (d) any net pension or post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, amortization of such
amounts arising in prior periods, amortization of the unrecognized obligation (and loss or cost) existing at the date of initial application of Statement of Financial Accounting Standards No. 87, 106 and 112 (or any successor provision or other
financial accounting standard having a similar result or effect), and any other item of a similar nature;
22
(7)
any income (loss) from the extinguishment, conversion or cancellation of Indebtedness, Hedging Obligations or
other derivative instruments (including deferred financing costs written off, premiums paid or other expenses incurred);
(8)
any unrealized or realized gains or losses in respect of any Hedging Obligations or any ineffectiveness
recognized in earnings related to hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions;
(9)
any fees, losses, costs, expenses or charges incurred during such period (including any transaction, retention
bonus or similar payment), or any amortization thereof for such period, in connection with (a) any acquisition, recapitalization, Investment, Asset Disposition, disposition, issuance or repayment of Indebtedness (including such fees, expense or
charges related to the offering, issuance and rating of the Notes, the Second Lien Notes, other securities and any Credit Facilities), issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including
any amendment or other modification of the Notes, the Second Lien Notes, other securities and any Credit Facilities), in each case, including the Transactions, any such transaction consummated prior to, on or after the Issue 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 (including, for
the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Accounting Standards Codification Topic 805—Business Combinations (or any successor provision or other financial accounting standard having a
similar result or effect) and any adjustments resulting from the application of Accounting Standards Codification Topic 460—Guarantees (or any successor provision or other financial accounting standard having a similar result or effect) or any
related pronouncements) and (b) complying with the requirements under, or making elections permitted by, the documentation governing any Indebtedness;
(10)
any unrealized or realized gain or loss resulting in such period from currency translation increases or
decreases 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 risk), intercompany loans, accounts receivables, accounts
payable, intercompany balances, other balance sheet items, Hedging Obligations or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary and any other realized or unrealized foreign exchange
gains or losses relating to the translation of assets and liabilities denominated in foreign currencies;
(11)
any unrealized or realized income (loss) or non-cash expense
attributable to movement in mark-to-market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP;
23
(12)
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 those required or permitted by Accounting Standards Codification Topic 805–Business Combinations and Accounting Standards Codification
350–Intangibles-Goodwill and Other (or any successor provision or other financial accounting standard having a similar result or effect)) and related pronouncements, 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, leases, goodwill, intangible assets, in-process research and development, deferred revenue
(including deferred costs related thereto and deferred rent) and debt line items thereof, resulting from the application of acquisition method accounting, recapitalization accounting or purchase accounting, as the case may be, in relation to the
Transactions or any consummated acquisition (by merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment or the amortization or write-off or write-down of any amounts
thereof;
(13)
any impairment charge, write-off or write-down, including impairment
charges, write-offs or write-downs related to intangible assets, long-lived assets, goodwill, investments in debt or equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) and
investments recorded using the equity method or as a result of a change in law or regulation, in connection with any disposition of assets and the amortization of intangibles arising pursuant to GAAP;
(14)
(a) accruals and reserves (including contingent liabilities) that are established or adjusted within 18 months
after the closing of any acquisition or disposition that are so required to be established or adjusted as a result of such acquisition or disposition in accordance with GAAP, or changes as a result of adoption or modification of accounting policies,
(b) charges, accruals, expenses and reserves as a result of adoption or modification of accounting policies, shall be excluded, and (c) earn-out, non-compete
and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise (and including deferred performance incentives in connection with any acquisition (by merger, consolidation, amalgamation or
otherwise), joint venture investment or other Investment whether or not a service component is required from the transferor or its related party)) and adjustments thereof and purchase price adjustments;
(15)
any income (loss) related to any realized or unrealized gains and losses resulting from Hedging Obligations or
embedded derivatives that require similar accounting treatment (including embedded derivatives in customer contracts), and the application of Accounting Standards Codification Topic 815—Derivatives and Hedging (or any successor provision or
other financial accounting standard having a similar result or effect) and its related pronouncements or mark to market movement of non-U.S. currencies, Indebtedness, derivatives instruments or other financial
instruments pursuant to GAAP, including Accounting Standards Codification Topic 825—Financial Instruments (or any successor provision or other financial accounting standard having a similar result or effect) or an alternative basis of
accounting applied in lieu of GAAP;
24
(16)
any non-cash expenses, accruals or reserves related to adjustments to
historical Tax exposures and any deferred tax expense associated with Tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowances related to such item;
(17)
the amount of (x) Board of Director (or equivalent thereof) fees, refinancing, transaction, advisory and
other fees (including exit and termination fees) and indemnities, costs and expenses paid or accrued in such period to (or on behalf of) any Permitted Holder or otherwise to any member of the Board of Directors (or the equivalent thereof) of the
Company, any of its Subsidiaries, any Parent Entity, any Permitted Holder or any Affiliate of a Permitted Holder, and (y) payments made to option holders of the Company or any Parent Entity in connection with, or as a result of, any
distribution being made to equityholders of such Person or its Parent Entity, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, including
any cash consideration for any repurchase of equity;
(18)
the amount of loss or discount on sale of Securitization Assets, Receivables Assets and related assets in
connection with a Qualified Securitization Financing or Receivables Facility; and
(19)
(i) payments to third parties in respect of research and development, including amounts paid upon signing,
success, completion and other milestones and other progress payments, to the extent expensed, (ii) at the election of the Company with respect to any quarterly period, 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), and (iii) at the election of the Company 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.
In
addition, to the extent not already excluded (or included, as applicable) in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall be
increased by the amount of: (i) any expenses, charges or losses that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets
permitted hereunder, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such evidence (net of any amount so added back in a prior
period to the extent not so reimbursed within the applicable 365-day period) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as
the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such evidence (net of
any amount so added back in a prior period to the extent not so reimbursed within the applicable 365-day period), expenses, charges or losses with respect to liability or Casualty Events or business
interruption. Consolidated Net Income shall be reduced by the amount of distributions actually made to any Parent Entity of such Person in respect of such period in accordance with Section 3.3(b)(9)(i) as though such
amounts had been paid as Taxes directly by such Person for such periods.
25
“Consolidated Total Indebtedness” means, as of any date of determination,
an amount equal to (a) the aggregate principal amount of outstanding Indebtedness for borrowed money (excluding Indebtedness with respect to Cash Management Obligations and intercompany Indebtedness), plus (b) the aggregate principal
amount of Finance Lease Obligations, Purchase Money Obligations and unreimbursed drawings under letters of credit of the Company and its Restricted Subsidiaries outstanding on such date (provided that any unreimbursed amount under commercial
letters of credit shall not be counted as Consolidated Total Indebtedness until five Business Days after such amount is drawn), minus (c) the aggregate amount of cash and Cash Equivalents included on the consolidated balance sheet of the
Company and its Restricted Subsidiaries as of the end of the most recent fiscal period for which consolidated financial statements are available (which may, at the Company’s election, be internal financial statements) (provided that the
cash proceeds of any proposed incurrence of Indebtedness shall not be included in this clause (c) for purposes of calculating the Consolidated Total Leverage Ratio), with such pro forma adjustments as are consistent with the pro forma
adjustments set forth in the definition of “Fixed Charge Coverage Ratio.” For the avoidance of doubt, Consolidated Total Indebtedness shall exclude Indebtedness in respect of any Receivables Facility or Securitization Facility but shall
include the Reserved Indebtedness Amount, if any.
“Consolidated Total Leverage Ratio” means, as of any date of
determination, the ratio of (x) Consolidated Total Indebtedness as of such date to (y) LTM EBITDA.
“Contingent
Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness
(“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent:
(1)
to purchase any such primary obligation or any property constituting direct or indirect security therefor;
(2)
to advance or supply funds:
(a)
for the purchase or payment of any such primary obligation; or
(b)
to maintain the working capital or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor; or
(3)
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, 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 Company and/or other companies.
26
“Controlling Collateral Agent” has the meaning assigned to such term in
the First Lien Intercreditor Agreement.
“Corporate Trust Office” means the designated corporate trust office of the
Trustee at which at any time its corporate trust business will be administered (which office at the date of this Indenture is located at Regions Bank, Attention: Corporate Trust Services – Accendra Health, Inc., 1180 West Peachtree Street,
Suite 1200, Atlanta, GA 30309), or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the designated 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 Company).
“Credit Agreements” means the Term
Loan Credit Agreement and the Revolving Credit Agreement.
“Credit Facility” means, with respect to the Company or any
of its Subsidiaries, one or more debt facilities (including the Credit Agreements), indentures or other arrangements, commercial paper facilities and overdraft facilities with banks, other financial institutions or investors providing for revolving
credit loans, term loans, notes, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other
Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the
original administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether provided under the relevant original Credit Agreement or one or more other credit or other agreements, indentures,
financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any
Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the
foregoing, the term “Credit Facility” shall include any agreement or instrument (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“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 prior to becoming
an Event of Default.
“Definitive Notes” means certificated Notes.
27
“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.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified
in Section 2.3 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 provisions of this Indenture.
“Derivative Instrument” with respect to a Person, means 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 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 Company and/or any one
or more of the Guarantors (the “Performance References”).
“Designated
Non-Cash Consideration” means the fair market value (as determined in good faith by the Company) of non-cash consideration received by the Company or any of
its Restricted Subsidiaries in connection with an Asset Disposition 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 or Cash Equivalents received in connection with a subsequent payment, redemption, retirement, sale or other disposition of 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
compliance with Section 3.5 hereof.
“Designated Preferred Stock” means Preferred
Stock of the Company or a Parent Entity (other than Disqualified Stock) that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary
for the benefit of their employees to the extent funded by the Company or such Subsidiary) and that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Company at or prior to the issuance
thereof, the Net Cash Proceeds of which are excluded from the calculation set forth in Section 3.3(a)(iii)(C) hereof.
“Disinterested Director” means, with respect to any Affiliate Transaction, a member of the Board of Directors of the
Company having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors of the Company shall be deemed not to have such a financial interest by reason of such
member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of such Capital Stock.
28
“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 exchangeable) or upon the happening of any event:
(1)
matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant to a sinking fund
obligation or otherwise; or
(2)
is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable
or repurchasable for cash or in exchange for Indebtedness at the option of the holder of the Capital Stock in whole or in part,
in each
case on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which there are no Notes outstanding; provided, however, that (i) only the portion of Capital Stock which so matures or is
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock
solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Stock if any such
redemption or repurchase obligation is subject to compliance by the relevant Person with Section 3.3 hereof; provided, however, that if such Capital Stock is issued to any future, current or former employee,
director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members (excluding the Permitted Holders (but not excluding any future, current or former employee, director, officer, manager or
consultant)) or Immediate Family Members), of the Company, any of its Subsidiaries, any Parent Entity or any other entity in which the Company or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate”
by the Board of Directors (or the compensation committee thereof) or any other plan for the benefit of current, former or future employees (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or its
Subsidiaries or by any such plan to such employees (or their respective Controlled Investment Affiliates or Immediate Family Members), such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by
the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dollars” or
“$” means the lawful currency of the United States of America.
“Domestic Foreign Holding Company”
means any Subsidiary that owns no material assets (directly or through one or more disregarded entities) other than capital stock (including any Indebtedness that is treated as equity for U.S. Federal income tax purposes) of one or more CFCs.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the
District of Columbia.
“DTC” means The Depository Trust Company or any successor securities clearing agency.
“Equity Offering” means a sale of Capital Stock (other than through the issuance of Disqualified Stock or Designated
Preferred Stock or through an Excluded Contribution) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions or
other securities of the Company or any Parent Entity and (b) issuances of Capital Stock to any Subsidiary of the Company.
29
“Euro” means the single currency of participating member states of the
economic and monetary union as contemplated in the Treaty on European Union.
“Exchange Act” means the U.S. Securities
Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“Exchange
Offers” means the offers by the Company to any and all holders of (i) Existing Notes to exchange their Existing Notes for a combination of Notes and Second Lien Notes and (ii) 2029 Notes to subscribe to purchase the Notes for cash, in
each case, as described in the Exchange Offering Memorandum.
“Exchange Offer Final Settlement Date” means the last
date on which any Notes or Second Lien Notes are issued in exchange for Existing Notes pursuant to the terms of the Exchange Offers.
“Exchange Offering Memorandum” means the confidential offering memorandum and consent solicitation statement, dated
May 22, 2026, setting forth the terms and conditions of the Exchange Offers, as amended or supplemented, including by way of press release or other public announcement.
“Excluded Contribution” means Net Cash Proceeds or property or assets received by the Company as capital contributions to
the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust
established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the
Company.
“Excluded Equity” means equity interests (i) of any Unrestricted Subsidiary, (ii) of any Foreign
Subsidiary or Domestic Foreign Holding Company (in each case other than any Guarantor), in each case of the Company or a Domestic Subsidiary of the Company and not otherwise constituting Excluded Equity, in excess of 65% of the issued and
outstanding equity interests of each such Foreign Subsidiary or Domestic Foreign Holding Company (and of any subsidiary of such Foreign Subsidiary or Domestic Foreign Holding Company), (iii) of any Subsidiary with respect to which the Revolving
Credit Agreement Collateral Agent and the Company have determined in their reasonable judgment and agreed in writing that the costs or other consequences (including any adverse tax consequences; provided that with respect
to adverse tax consequences the determination shall be made by the Company in good faith) of providing a pledge of such equity interests or perfection thereof is excessive in view of the benefits to be obtained by the applicable First Lien Secured
Parties therefrom, (iv) of any Captive Insurance Subsidiaries, not-for-profit Subsidiaries, special purpose entities, (v) of any
non-Wholly Owned Restricted Subsidiary; (vi) of any Securitization Subsidiary; (vii) of any Subsidiary outside the United States (other than any Guarantor) the pledge of which is prohibited by
applicable laws or which would reasonably be expected to result in a violation or breach of, or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers; and (viii) of Accendra Health Foundation and Accendra
Executive Deferred Compensation Trust.
30
“Excluded Property” means any of the following assets not included in the
Collateral granted by the Company and the Guarantors securing the Notes:
(i) (x) any
fee-owned real property and (y) any leasehold interests in real property (it being understood that no action shall be required with respect to creation or perfection of security interests with respect to
such any such fee-owned or leasehold interests, including to obtain landlord waivers, estoppels or collateral access letters);
(ii) (A) motor vehicles and other assets subject to certificates of title to the extent a Lien thereon cannot be perfected
by the filing of a UCC financing statement (or analogous procedures under applicable laws in the relevant jurisdiction in the case of jurisdictions other than the U.S.), (B) letter of credit rights to the extent a Lien thereon cannot be
perfected by the filing of a UCC financing statement (or analogous procedures under applicable laws in the relevant jurisdiction in the case of jurisdictions other than the U.S.) and (C) commercial tort claims;
(iii) assets for so long as a pledge thereof or a security interest therein is prohibited by applicable laws;
(iv) margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the
United States);
(v) any cash, deposit accounts and securities accounts (including securities entitlements and related
assets) (it being understood that this exclusion shall not affect the grant of the Lien on proceeds of Collateral and all proceeds of Collateral shall be Collateral);
(vi) any lease, license or other agreements, or any property subject to a purchase money security interest, capitalized lease
obligation or similar arrangements, in each case to the extent permitted under the Note Documents, to the extent that a pledge thereof or a security interest therein would violate or invalidate such lease, license or agreement, purchase money,
capitalized lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than the Company or a Guarantor) after giving effect to the applicable anti-assignment clauses of the UCC and applicable laws,
other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable laws notwithstanding such prohibition;
(vii) assets for which a pledge thereof or security interest therein would result in a material adverse tax consequence as
determined in good faith by the Company; provided that nothing in this clause (vii) shall limit the pledge of assets by any Foreign Subsidiary that is a Guarantor;
31
(viii) assets for which the Revolving Credit Agreement Collateral Agent and
the Company have determined in their reasonable judgment that the cost of creating or perfecting such pledges or security interests therein would be excessive in view of the benefits to be obtained by the applicable First Lien Secured Parties
therefrom;
(ix) any intent-to-use
trademark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant,
attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable
federal law;
(x) Excluded Equity; and
(xi) any asset of any Subsidiary of the Company that is a CFC or Domestic Foreign Holding Company.
“Excluded Subsidiary” means (i) Accendra Health Foundation and Accendra Executive Deferred Compensation Trust,
(ii) any Subsidiary that is prohibited by applicable law or by any contractual obligation existing on the Issue Date (or, if later, the date such Subsidiary first becomes a Subsidiary) from guaranteeing the Obligations (and in the case
of such contractual obligation, not entered into in contemplation of the acquisition of such Subsidiary) or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such
consent, approval, license or authorization has been received, (iii) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or other similar Investment permitted hereunder that, at the time of such Permitted Acquisition
or other similar Investment, has outstanding secured Indebtedness not incurred in contemplation of such Permitted Acquisition or other similar Investment and each Restricted Subsidiary that is a Subsidiary thereof that guarantees such Indebtedness,
in each case, to the extent such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor (provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause (iii) if such secured
Indebtedness is repaid or becomes unsecured, if such Restricted Subsidiary ceases to be an obligor with respect to such secured Indebtedness or such prohibition no longer exists, as applicable), (iv) any Immaterial Subsidiary or Unrestricted
Subsidiary, (v) Captive Insurance Subsidiaries, (vi) [reserved], (vii) [reserved], (viii) any non-Wholly Owned Subsidiary, (ix) any Domestic Foreign Holding Company, (x) any Foreign Subsidiary that is a CFC (other
than any Foreign Subsidiary that is a Guarantor), (xi) any Domestic Subsidiary of a Foreign Subsidiary that is a CFC (other than any Foreign Subsidiary that is a Guarantor), (xii) any Securitization Subsidiary; and (xiii) any other
Subsidiary with respect to which the Company has determined in its reasonable judgment that the cost or other consequences (including any adverse tax consequences; provided that with respect to adverse tax consequences
the determination shall be made by the Company in good faith) of providing a Guarantee is excessive in view of the benefits to be obtained by the applicable First Lien Secured Parties therefrom, in each case unless such Subsidiary is designated as a
Guarantor hereunder; provided that such Subsidiary shall not guarantee any Indebtedness for borrowed money of a Note Party in an aggregate principal amount in excess of $25 million.
“Existing Notes” means the 2029 Notes and the 2030 Notes.
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“fair market value” may be conclusively established by means of an
Officer’s Certificate or resolutions of the Board of Directors of the Company setting out such fair market value as determined by such Officer or such Board of Directors in good faith.
“Finance Lease Obligations” means an obligation that is required to be classified and accounted for as a finance lease for
financial reporting purposes on the basis of GAAP; provided that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to December 31, 2018 (whether or not such
operating leases were in effect on such date) shall continue to be accounted for as operating leases (and not as Finance Lease Obligations) for purposes of this Indenture regardless of any change in GAAP thereafter that would otherwise require such
leases to be recharacterized as Finance Lease Obligations. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined on the basis of
GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“First Lien Credit Agreement Collateral Agents” means the Revolving Credit Agreement Collateral Agent and the Term Loan
Credit Agreement Collateral Agent.
“First Lien Credit Agreement Obligations” means the Obligations in respect of the
Revolving Credit Agreement and Term Loan Credit Agreement and the applicable First Lien Documents.
“First Lien Credit Agreement
Secured Parties” means the (a) “Secured Parties” as defined in the Revolving Credit Agreement and (b) “Secured Parties” as defined in the Term Loan Credit Agreement.
“First Lien Documents” means the indentures, credit agreements, guarantee agreements and collateral agreements governing
any Series of First Lien Obligations.
“First Lien Intercreditor Agreement” means that certain Amended and Restated
First Lien Pari Passu Intercreditor Agreement, dated as of the Issue Date, by and among the First Lien Credit Agreement Collateral Agents, the First Lien Notes Collateral Agent, the Company and the Guarantors party thereto as the same may be
amended, restated, amended and restated, supplemented or otherwise modified from time to time which shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof.
“First Lien Obligations” means, collectively, (a) the First Lien Credit Agreement Obligations, (b) the Notes
Obligations and (c) each other Series of Additional First Lien Obligations.
“First Lien Secured Parties” means
(a) the First Lien Credit Agreement Secured Parties, (b) the Notes Secured Parties and (c) the Additional First Lien Secured Parties with respect to each other Series of Additional First Lien Obligations.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating
Organization.
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“Fixed Charge Coverage Ratio” means, with respect to any Person on any
determination date, the ratio of Consolidated EBITDA of such Person for the most recent four consecutive fiscal quarters ending immediately prior to such determination date (the “reference period”) for which consolidated financial
statements are available (which may be internal consolidated financial statements) to the Fixed Charges of such Person for the reference period. In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
defeases, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced), has caused any Reserved Indebtedness Amount to
be deemed to be incurred during such period or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the reference period but prior to or simultaneously 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, deemed incurrence, assumption, guarantee,
redemption, defeasance, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above, any Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and disposed operations that have been made by the Company or any of its Restricted Subsidiaries, during the reference period or subsequent to the reference period and on or prior to or simultaneously 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 and disposed operations (and the change in any associated fixed charge obligations and the change in
Consolidated EBITDA resulting therefrom) had occurred on the first day of the reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Company
or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation 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 or disposed operation had occurred at the
beginning of the reference period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction (including
the Transactions), the pro forma calculations shall be made in good faith by a responsible financial or chief accounting officer of the Company (and may include, for the avoidance of doubt, cost savings, operating expenses reductions and synergies
resulting from such transactions which is being given pro forma effect). If any Indebtedness bears a floating 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 reference period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Finance Lease Obligation shall be deemed to accrue
at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Finance 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 with a pro forma basis shall be computed based upon the average daily balance
34
of such Indebtedness during the reference 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 determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Company may
designate.
“Fixed Charges” means, with respect to any Person for any period, the sum of:
(1)
Consolidated Interest Expense of such Person for such Period;
(2)
all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of
Preferred Stock of any Restricted Subsidiary of such Person during such period; and
(3)
all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of
Disqualified Stock of such Person during this period.
“Foreign Subsidiary” means any direct or
indirect Subsidiary of the Company which is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting
principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature
used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made (a) without giving effect to any election under Accounting Standards Codification Topic 825—Financial
Instruments, or any successor thereto or comparable accounting principle (including pursuant to the Accounting Standards Codification), to value any Indebtedness of the Company or any Subsidiary at “fair value,” as defined therein and
(b) the amount of any Indebtedness under GAAP with respect to Finance Lease Obligations shall be determined in accordance with the definition of Finance Lease Obligations. At any time after the Issue Date, the Company may elect to apply IFRS
accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be
irrevocable; provided, further, that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as
previously calculated or determined in accordance with GAAP. The Company shall give notice of any such election made in accordance with this definition to the Trustee. 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.
If there occurs a change in IFRS or GAAP, as the
case may be, and such change would cause a change in the method of calculation of any standards, terms or measures (including all computations of amounts and ratios) used in this Indenture (an “Accounting Change”), then the
Company may elect, as evidenced by a written notice of the Company to the Trustee, that such standards, terms or measures shall be calculated as if such Accounting Change had not occurred.
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“Guarantee” means, any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other
Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise); or
(2)
entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the
payment thereof or to protect such obligee against loss in respect thereof (in whole or in part),
provided, however, that
the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordinary course of business or consistent with past practice and (y) standard contractual indemnities or product warranties provided in the
ordinary course of business, and provided further that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee
is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary
obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guarantee”
used as a verb has a corresponding meaning.
“Guarantor” means any Restricted Subsidiary that Guarantees the Notes,
until such Note Guarantee is released in accordance with the terms of this Indenture.
“Hedging Obligations” means,
with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign
exchange contracts, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
“Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be
the nominee of DTC.
“Holding Company” means any Person so long as such Person directly or indirectly holds 100% of the
total voting power of the Voting Stock of the Company, and at the time such Person acquired such voting power, no Person and no group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor
provision), 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, or any successor provision), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of
such Person.
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“IFRS” means the International Financial Reporting Standards as issued by
the International Accounting Standards Board as in effect from time to time.
“Immaterial Subsidiary” means, at any
date of determination, each Restricted Subsidiary of the Company that (i) has Total Assets and Consolidated EBITDA of less than 2.5% of the Total Assets and the total Consolidated EBITDA of the Company and its Restricted Subsidiaries and,
(ii) together with all other Immaterial Subsidiaries, has Total Assets and Consolidated EBITDA of less than 7.5% of the Total Assets and the total Consolidated EBITDA of the Company and its Restricted Subsidiaries, in each case, determined on a
consolidated basis in accordance with GAAP, as applicable, measured at the end of the most recent fiscal period for which internal financial statements are available and Consolidated EBITDA on a pro forma basis giving effect to any acquisitions or
dispositions of companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary.
“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 estate 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.
“Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be
Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit
or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.
“Indebtedness”
means, with respect to any Person on any date of determination (without duplication):
(1)
the principal of indebtedness of such Person for borrowed money;
(2)
the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)
all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or
other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been
reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);
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(4)
the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of
property (except trade payables or similar obligations to trade creditors), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;
(5)
Finance Lease Obligations of such Person;
(6)
the principal component of all obligations, or liquidation preference, of such Person with respect to any
Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)
the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good
faith by the Company) and (b) the amount of such Indebtedness of such other Persons;
(8)
Guarantees by such Person of the principal component of Indebtedness of the type referred to in clauses (1),
(2), (3), (4), (5) and (9) of other Persons to the extent Guaranteed by such Person; and
(9)
to the extent not otherwise included in this definition, net obligations of such Person under Hedging
Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement);
with respect to clauses (1), (2), (4) and (5) above, 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.
The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds
borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of
Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. Indebtedness shall be calculated without giving effect to the effects of 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.
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Notwithstanding the above provisions, in no event shall the following constitute
Indebtedness:
(i)
Contingent Obligations Incurred in the ordinary course of business or consistent with past practice, other than
Guarantees or other assumptions of Indebtedness;
(ii)
Obligations under or in respect of Qualified Securitization Financings or Receivables Facilities;
(iii)
Cash Management Services;
(iv)
any lease, concession or license of property (or Guarantee thereof) which would be considered an operating
lease under GAAP, Non-Financing Lease Obligations or any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice;
(v)
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;
(vi)
in connection with the purchase by the Company or any Restricted Subsidiary of any business, any deferred or
prepaid revenue, 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;
(vii)
for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement
or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes;
(viii)
Indebtedness of any Parent Entity appearing on the balance sheet of the Company solely by reason of push down
accounting under GAAP;
(ix)
Capital Stock (other than Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred
Stock); or
(x)
amounts owed to dissenting stockholders in connection with, or as a result of, their exercise of appraisal
rights and the settlement of any claims or action (whether actual, contingent or potential) with respect thereto (including any accrued interest).
“Indenture” means this Indenture as amended or supplemented from time to time.
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“Independent Financial Advisor” means an accounting, appraisal,
investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing; provided, however, that such firm or appraiser is not an Affiliate of the Company.
“Initial Guarantors” means the entities listed on the signature pages hereof as “Guarantors.”
“Initial Notes” has the meaning ascribed to it in the recitals of this Indenture.
“Intellectual Property” means registered trademarks, service marks, trade names, domain names, copyrights, patents or other
intellectual property.
“Intercompany License Agreement” means any cost sharing agreement, commission or royalty
agreement, license or sublicense agreement, distribution agreement, services agreement, intellectual property rights transfer agreement, any related agreements or similar agreements, in each case where all parties to such agreement are one or more
of the Company or a Restricted Subsidiary.
“Intercreditor Agreements” means each of the First Lien Intercreditor
Agreement, the Junior Lien Intercreditor Agreement and any Other Intercreditor Agreement.
“Investment” means, with
respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of advances, loans or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or
employees of any Person in the ordinary course of business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the basis of GAAP; provided, however, that endorsements of negotiable instruments and documents in the
ordinary course of business or consistent with past practice will not be deemed to be an Investment.
For purposes of
Section 3.3 and Section 3.20 hereof:
(1)
“Investment” will include the portion (proportionate to the Company’s equity interest
in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary of the Company at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive)
equal to (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the
net assets (as determined by the Company) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary;
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(2)
any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the
time of such transfer, in each case as determined in good faith by the Company; and
(3)
if the Company or any Restricted Subsidiary issues, sells or otherwise disposes of 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 Company or any Restricted Subsidiary in such Person remaining after giving effect thereto shall not be
deemed to be an Investment at such time.
The amount of any Investment outstanding at any time shall be the original
cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash and Cash Equivalents by the Company or a Restricted Subsidiary in respect of such Investment to the
extent such amounts do not increase any other baskets under this Indenture.
“Investment Grade Securities” means:
(1)
securities issued or directly and fully Guaranteed or insured by the United States, Canadian, Swiss or United
Kingdom government or any agency or instrumentality thereof (other than Cash Equivalents);
(2)
securities issued or directly and fully guaranteed or insured by a member of the European Union, or any agency
or instrumentality thereof (other than Cash Equivalents);
(3)
debt securities or debt instruments with a rating of “BBB-”
or higher from S&P or “Baa3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally
Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; and
(4)
investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and
(3) above which fund may also hold cash and Cash Equivalents pending investment or distribution.
“Investment Grade Status” shall occur when the Notes receive two of the following:
(1)
a rating of “BBB-” or higher from S&P;
(2)
a rating of “Baa3” or higher from Moody’s; or
(3)
a rating of “BBB-” or higher from Fitch;
or the equivalent of such rating by either any rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by
any other Nationally Recognized Statistical Ratings Organization.
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“Issue Date” means June 15, 2026.
“Issuer” has the meaning assigned to it in the recitals of this Indenture.
“Junior Lien Intercreditor Agreement” means that certain Junior Lien Intercreditor Agreement, dated as of the Issue Date,
by and among the First Lien Credit Agreement Collateral Agents, the Notes Collateral Agent, the Second Lien Notes Collateral Agent, the Company and the Guarantors party thereto, as the same may be amended, restated, amended and restated,
supplemented or otherwise modified from time to time which shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof.
“Junior Lien Obligations” means the Second Lien Obligations and any other Obligations with respect to Indebtedness for
borrowed money permitted to be incurred under this Indenture, which is by its terms intended to be secured by the Collateral with a Junior Lien Priority relative to the Notes; provided that the holders of such Indebtedness or their Collateral
Agent shall become party to the Junior Lien Intercreditor Agreement.
“Junior Lien Priority” means, relative to
specified Indebtedness, Indebtedness that is secured by a Lien on the Collateral that is junior in priority to the Liens on the Collateral and is subject to the Junior Lien Intercreditor Agreement (it being understood that junior Liens are not
required to rank equally and ratably with other junior Liens, and that Indebtedness secured by junior Liens may be secured by Liens that are senior in priority to, or rank equally and ratably with, or junior in priority to, other Liens constituting
junior Liens).
“Liability Management Transaction” means any refinancing, retirement, exchange, extension, repurchase,
or defeasance of any Notes or any Indebtedness for borrowed money that is contractually or structurally junior thereto with any other Indebtedness that is contractually, structurally or temporally senior (including as to Lien priority or additional
collateral) to the Notes (including, for the avoidance of doubt, through any incurrence of Indebtedness by a Person that is not the Issuer or a Guarantor, whether or not such Person owns any assets or property), and any asset transfer (and including
any related assumption of liabilities) consummated in connection therewith; provided that, for the avoidance of doubt, in no event shall any of the following constitute a Liability Management Transaction:
(1) any refinancing, retirement, exchange, extension, repurchase, or defeasance of any existing Indebtedness of the Issuer or any of its
Restricted Subsidiaries that is already contractually, structurally or temporally senior (including as to Lien priority or additional collateral) to such Notes, with Indebtedness that is so senior to no greater extent;
(2) any Indebtedness that is offered ratably on the same terms and conditions as offered to all other providers of such Indebtedness (other
than bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such transaction), to all adversely affected Holders; or
(3) any Indebtedness (i) constituting the Initial Notes or the Second Lien Notes incurred in connection with the Exchange Offers or
(ii) incurred to finance the repurchase of or in exchange for the Existing Notes in accordance with Section 3.2(b)(11) and Section 3.3(b)(14).
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“Lien” means any mortgage, pledge, security interest, encumbrance, lien,
hypothecation or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof); provided, that in no event shall an operating lease to 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), whose consummation is not conditioned on the
availability of, or on obtaining, third party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such
redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof; (4) any asset sale or a disposition excluded from the definition of “Asset
Disposition” and (5) a “Change of Control.”
“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 Consolidated EBITDA of the Company 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 Company are available, in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition or Investment, as
applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in the definition of “Fixed Charge Coverage Ratio.”
“Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, directors,
officers, employees or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity, the Company or any Restricted Subsidiary:
(1)
(a) in respect of travel, entertainment, relocation or moving related expenses, payroll advances and other
analogous or similar expenses or payroll expenses, in each case Incurred in the ordinary course of business or consistent with past practice or (b) for purposes of funding any such person’s purchase of Capital Stock (or similar
obligations) of the Company, its Subsidiaries or any Parent Entity with (in the case of this sub-clause (b)) the approval of the Board of Directors;
(2)
in respect of relocation or moving related expenses, payroll advances and other analogous or similar expenses
or payroll expenses, in each case Incurred in connection with any closing or consolidation of any facility or office; or
(3)
not exceeding $10 million in the aggregate outstanding at the time of Incurrence.
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“Management Stockholders” means the members of management of the Company
(or any Parent Entity) or its Subsidiaries who are holders of Capital Stock of the Company or of any Parent Entity on the Issue Date.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common
Capital Stock of the Company or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 3.3(b)(10) multiplied by (ii) the arithmetic mean of the closing prices per share
of such common Capital Stock on the principal securities exchange on which such common Capital Stock are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally
Recognized Statistical Rating Organization.
“Nationally Recognized Statistical Rating Organization” means a nationally
recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.
“Net Available
Cash” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other
disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties
or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)
all legal, accounting, consulting, investment banking, title and recording tax expenses, commissions, premiums
(including tender premiums), defeasance costs, underwriting discounts and other fees and expenses (including original issue discount, upfront fees or similar fees) Incurred, and all Taxes paid, reasonably estimated to be actually payable or accrued
as a liability under GAAP (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company or any of its Subsidiaries, transfer taxes, deed or mortgage recording
taxes and Taxes that would be payable in connection with any deemed or actual repatriation of such proceeds and after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset
Disposition, including distributions for Related Taxes;
(2)
all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in
accordance with the terms of any Lien upon such assets, or which by applicable law must be repaid out of the proceeds from such Asset Disposition;
(3)
all distributions and other payments required to be made to minority interest holders (other than any Parent
Entity, the Company or any of its respective Subsidiaries) in Subsidiaries or joint ventures as a result of such Asset Disposition;
44
(4)
the deduction of appropriate amounts required to be provided by the seller as a reserve, on the basis of GAAP,
against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition; and
(5)
any funded escrow established pursuant to the documents evidencing such sale or disposition to secure and
indemnification obligation on adjustments to the purchase price associated with any such Asset Disposition.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale
net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such
issuance or sale and net of Taxes paid or reasonably estimated to be actually payable as a result of such issuance or sale (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of
such proceeds to the Company or any of its Subsidiaries, transfer taxes, deed or mortgage recording taxes and Taxes that would be payable in connection with any deemed or actual repatriation of such proceeds and after taking into account any
available tax credit or deductions and any tax sharing agreements, and including distributions for Related Taxes).
“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 Company or any Guarantor immediately prior to such date of determination.
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease in accordance with GAAP. For the avoidance of doubt, an operating lease
shall be considered a Non-Financing Lease Obligation.
“Non-Guarantor Subsidiary” means any Restricted Subsidiary of the Company that is
not a Guarantor.
“Non-Note Party” means any Restricted Subsidiary of the
Company that is not a Note Party.
“Non-U.S. Person” means a Person who is not
a U.S. Person (as defined in Regulation S).
“Note Documents” means the Notes (including Additional Notes), the Note
Guarantees, the Notes Collateral Documents and this Indenture.
“Note Guarantees” means the Guarantees of the Initial
Notes and any Additional Notes.
“Note Parties” means the Issuer and the Guarantors.
“Notes” has the meaning ascribed to it in the recitals of this Indenture.
45
“Notes Collateral Agent” means Regions Bank, in its capacity as
collateral agent for the holders of the Notes Obligations under this Indenture and the Notes Collateral Documents and any successor pursuant to the provisions of this Indenture and the Notes Collateral Documents.
“Notes Collateral Documents” means, collectively, the First Lien Intercreditor Agreement, the Junior Lien Intercreditor
Agreement, any other intercreditor agreements entered into from time to time, the Notes Security Documents and the supplements thereto.
“Notes Custodian” means the custodian with respect to the Global Notes (as appointed by DTC) or any successor Person
thereto, and shall initially be the Trustee.
“Notes Obligations” means the Obligations in respect of the Notes, this
Indenture, the Guarantees relating to the Notes, the Notes Collateral Documents and the other Note Documents.
“Notes Secured
Parties” means the Trustee, the Notes Collateral Agent and the Holders of the Notes.
“Notes Security
Agreement” means that certain Security Agreement, dated as of the Issue Date, among the Company, the Guarantors party thereto from time to time and the Notes Collateral Agent, as it may be amended, supplemented, restated, replaced or
otherwise modified from time to time pursuant to this Indenture.
“Notes Security Documents” means the Notes Security
Agreement, each joinder to the Notes Security Agreement, all security agreements, pledge agreements, control agreements, collateral assignments, mortgages, deeds of trust or other grants or transfers for security or agreements related thereto
executed and delivered by the Company or any Guarantor pursuant to which a Lien is granted (or purported to be granted) in favor of the Notes Collateral Agent on behalf of itself, the Trustee, the Holders and the other Notes Secured Parties to
secure the Notes and the Note Guarantees, in each case, as amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time.
“Obligations” means any principal, interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for Post-Petition Interest is allowed or allowable in such proceedings), penalties, fees, indemnifications, reimbursements (including, without
limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
“Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive Officer,
the President, the Chief Financial Officer, any Executive Vice President, any Vice President, the Treasurer, any Managing Director, or the Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such
entity, or (2) any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors of such Person.
“Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Person.
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“Opinion of Counsel” means a written opinion from legal counsel who is
reasonably satisfactory to the Trustee. The counsel may be an employee of or counsel to the Company or its Subsidiaries.
“Parent
Entity” means any direct or indirect parent of the Company.
“Parent Entity Expenses” means:
(1)
costs (including all professional fees and expenses) Incurred by any Parent Entity in connection with reporting
obligations under or otherwise Incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating
to the Notes, the Guarantees or any other Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed or delivered with respect to the Securities Act, Exchange Act or the respective rules and regulations
promulgated thereunder;
(2)
customary salary, bonus, severance, indemnity, insurance (including premiums therefor) and other benefits
payable to any employee, director, officer, manager, contractor, consultant or advisor of any Parent Entity or other Persons under its articles, charter, by-laws, partnership agreement or other organizational
documents or pursuant to written agreements with any such Person to the extent relating to the Company and its Subsidiaries;
(3)
obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to
the extent relating to the Company and its Subsidiaries;
(4)
(x) general corporate operating and overhead fees, costs and expenses, (including all legal, accounting and
other professional fees, costs and expenses) and, following the first public offering of the Company’s Capital Stock or the Capital Stock of any Parent Entity, listing fees and other costs and expenses attributable to being a publicly traded
company of any Parent Entity and (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of the Company or any of its Restricted Subsidiaries;
(5)
expenses Incurred by any Parent Entity in connection with (i) any offering, sale, conversion or exchange
of Capital Stock or Indebtedness (whether or not successful) and (ii) any related compensation paid to employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or
Immediate Family Members) of such Parent Entity;
(6)
amounts payable pursuant to any management services or similar agreements or the management services provisions
in an investor rights agreement or other equityholders’ agreement in effect on the Issue Date (including any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the
reasonable determination of the Company to the Holders when taken as a whole, as compared to the management services or similar agreements as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not
paid directly by the Company or its Subsidiaries; and
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(7)
amounts to finance Investments that would otherwise be permitted to be made pursuant to
Section 3.3 hereof if made by the Company; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such direct or indirect parent company
shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (2) the merger, consolidation or
amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 4.1 hereof) in order to consummate such Investment, (C) such direct or
indirect parent company and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have
given such consideration or made such payment in compliance with this Indenture and such consideration or other payment is included as a Restricted Payment under this Indenture, (D) any property received by the Company shall not increase
amounts available for Restricted Payments pursuant to Section 3.3(a)(iii) and (E) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this covenant
or pursuant to the definition of “Permitted Investment.”
“Pari Passu Indebtedness” means
Indebtedness of the Company which ranks equally in right of payment to the Notes or of any Guarantor if such Indebtedness ranks equally in right of payment to the Guarantees of the Notes.
“Pari Passu Lien Priority” means, relative to specified Indebtedness, Indebtedness for borrowed money that has equal Lien
priority on the Collateral and is subject to the First Lien Intercreditor Agreement.
“Paying Agent” means any Person
authorized by the Company to pay the principal of (and premium, if any) or interest on any Note on behalf of the Company.
“Permitted Acquisition” means the purchase or other acquisition of property and assets or businesses of any Person or of
assets constituting a business unit, a line of business or division of such Person, or equity interests in a Person that, upon the consummation thereof, will be (or such assets will be contributed to) a Restricted Subsidiary (including as a result
of a merger or consolidation).
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets
used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person, in each case, for at least reasonably equivalent value (as determined by
the Company in good faith); provided that any cash or Cash Equivalents received in excess of the value of any assets, cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5 hereof.
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“Permitted Holders” means, collectively, (i) the Management
Stockholders (including any Management Stockholders holding Capital Stock through an equityholding vehicle), (ii) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any Parent Entity
or the Company, acting in such capacity, (iii) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing, any Holding Company 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 (iii), collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Company or any Parent Entity held by such group, and (iv) any Holding
Company. Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made or waived in accordance with the requirements of this Indenture, will thereafter, together
with its Affiliates, constitute an additional Permitted Holder.
“Permitted Intercompany Activities” means any
transactions (A) between or among the Company and its Restricted Subsidiaries that are entered into in the ordinary course of business or consistent with past practice of the Company and its Restricted Subsidiaries and, in the reasonable
determination of the Company are necessary or advisable in connection with the ownership or operation of the business of the Company and its Restricted Subsidiaries, including (i) payroll, cash management, purchasing, insurance and hedging
arrangements; (ii) management, technology and licensing arrangements; and (iii) customary loyalty and rewards programs; and (B) between or among the Company, its Restricted Subsidiaries and any Captive Insurance Subsidiary.
“Permitted Investment” means (in each case, by the Company or any of its Restricted Subsidiaries):
(1)
Investments (a) by any Note Party in any other Note Party or a Person (including the Capital Stock of any
such Person) that will, upon the making of such Investment, become a Note Party, (b) by any Non-Note Party in any Note Party or a Person (including the Capital Stock of any such Person) that will, upon
the making of such Investment, become a Note Party, (c) by any Non-Note Party in any other Non-Note Party and (d) by any Note Party in any Non-Note Party; provided that the aggregate amount of such Investments in Non-Note Parties pursuant to clause (d) shall not exceed the greater of (i)
$50 million and (ii) 15.0% of LTM EBITDA (excluding any Investments received in respect of, or consisting of, the transfer or contribution of equity interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary) (with
the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(2)
Investments held by another Person if such Person is engaged, directly or through entities that will be
Restricted Subsidiaries, in any Similar Business and as a result of such Investment such other Person, in one transaction or a series of transactions, is merged, amalgamated, consolidated or otherwise combined with or into, or transfers or conveys
all or substantially all its assets (or such division, business unit, product line or business) to, or is liquidated into, the Company or a Restricted Subsidiary or becomes a Note Party in accordance with clause (1); provided that such
Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, combination, transfer or conveyance;
49
(3)
Investments in cash, Cash Equivalents or Investment Grade Securities;
(4)
Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the
ordinary course of business or consistent with past practice;
(5)
Investments in payroll, travel and similar advances to cover matters that are expected at the time of such
advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business or consistent with past practice;
(6)
Management Advances;
(7)
Investments received in settlement, compromise or resolution of debts created in the ordinary course of
business or consistent with past practice and owing to the Company or any Restricted Subsidiary or in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Company or any such Restricted
Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or litigation,
arbitration or other disputes or otherwise with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(8)
Investments made as a result of the receipt of promissory notes or other
non-cash consideration (including earn-outs) from a sale or other disposition of property or assets, including an Asset Disposition;
(9)
Investments existing or pursuant to binding commitments, agreements or arrangements in effect on the Issue Date
and any modification, replacement, renewal, refinancing, reinvestment or extension thereof; provided that the amount of any such Investment may not be increased except (i) as required by the terms of such Investment or binding commitment
as in existence on the Issue Date (including in respect of any unused commitment), plus any accrued but unpaid interest (including any accretion of interest, original issue discount or the issuance of pay-in-kind securities) and premium payable by the terms of such Indebtedness thereon and fees and expenses associated therewith as of the Issue Date or (ii) as otherwise permitted under this Indenture;
(10)
Hedging Obligations, which transactions or obligations are Incurred in compliance with
Section 3.2 hereof;
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(11)
pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of
business or Liens otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 3.6 hereof;
(12)
any Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock) or Capital
Stock of any Parent Entity as consideration;
(13)
any transaction to the extent constituting an Investment that is permitted by and made in accordance with
Section 3.8(b) hereof (except those described in clauses (1), (6), (7), (8), (9) and (25) of Section 3.8(b));
(14)
Investments consisting of (i) purchases or other acquisitions of inventory, supplies, materials, equipment
and similar assets or (ii) licenses, sublicenses, cross-licenses, leases, subleases, assignments, contributions or other Investments of intellectual property or other intangibles or services in the ordinary course of business pursuant to any
joint development, joint venture or marketing arrangements with other Persons or any Intercompany License Agreement and any other Investments made in connection therewith;
(15)
(i) Guarantees of Indebtedness not prohibited by Section 3.2 hereof and (other than
with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business, and (ii) performance guarantees with respect to obligations that are not prohibited by this Indenture;
(16)
Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of
intent, or other acquisitions to the extent not otherwise prohibited by this Indenture;
(17)
Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged or amalgamated into
the Company or merged or amalgamated into or consolidated with a Restricted Subsidiary after the Issue 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, amalgamation or consolidation;
(18)
any Investment in any Subsidiary or any joint venture in the ordinary course of business or consistent with
past practice (including any cash management arrangements, cash pooling arrangements, intercompany loans or activities related thereto);
(19)
Investments in the ordinary course of business or consistent with past practice consisting of licensing of
intellectual property pursuant to joint marketing arrangements with other Persons;
(20)
contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to
claims of creditors in the case of a bankruptcy of the Company;
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(21)
[reserved];
(22)
additional Investments having an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (22) that are at that time outstanding, not to exceed the greater of $35 million and 10.0% of LTM EBITDA (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 is made in any person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such person becomes the
Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause;
(23)
[reserved];
(24)
(i) Investments arising in connection with a Qualified Securitization Financing or Receivables Facility and
(ii) distributions or payments of Securitization Fees and purchases of Securitization Assets or Receivables Assets in connection with a Qualified Securitization Financing or Receivables Facility;
(25)
Investments in connection with the Transactions;
(26)
repurchases of Notes;
(27)
[reserved];
(28)
guaranty and indemnification obligations arising in connection with surety bonds or similar obligations issued,
made or incurred in the ordinary course of business or consistent with past practice;
(29)
Investments (a) consisting of purchases and acquisitions of assets or services in the ordinary course of
business or consistent with past practice, (b) made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client, franchisee and customer contracts and loans or
(c) advances, loans, extensions of credit (including the creation of receivables) or prepayments made to, and guarantees with respect to obligations of, franchisees, distributors, suppliers, lessors, licensors and licensees in the ordinary
course of business or consistent with past practice;
(30)
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;
(31)
Investments consisting of UCC Article 3 endorsements for collection or deposit and Article 4 trade arrangements
with customers (or any comparable or similar provisions in other applicable jurisdictions) in the ordinary course of business or consistent with past practices;
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(32)
any Investment by or in any Captive Insurance Subsidiary in connection with the provision of insurance to the
Company or any 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;
(33)
non-cash Investments in connection with tax planning and reorganization
activities, and Investments in connection with a Permitted Intercompany Activities or Permitted Tax Restructuring;
(34)
Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration
or repair of assets on account of a Casualty Event; and
(35)
so long as no Event of Default has occurred and is continuing, any other Investment so long as, immediately
after giving pro forma effect to the Investment and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated Total Leverage Ratio shall be no greater than 2.75 to 1.00.
Notwithstanding anything herein to the contrary, the Company and its Restricted Subsidiaries may not make any Investment in any Unrestricted
Subsidiary (including any Investment made or deemed to be made upon designation of any Subsidiary as an Unrestricted Subsidiary) or otherwise transfer any property to any Unrestricted Subsidiary without the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes.
“Permitted Liens” means, with respect to any
Person:
(1)
Liens on assets or property of a Non-Guarantor Subsidiary securing
Indebtedness and other Obligations of any Non-Guarantor Subsidiary;
(2)
pledges, deposits or Liens (a) in connection with workmen’s compensation laws, payroll Taxes,
unemployment insurance laws, employers’ health Tax and other social security laws or similar legislation or other insurance related obligations (including in respect of deductibles, self-insured retention amounts and premiums and adjustments
thereto), (b) securing liability, reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments) for the benefit of insurance carriers under insurance or
self-insurance arrangements or otherwise supporting the payments of items set forth in the foregoing clause (a), or (c) in connection with bids, tenders, completion guarantees, contracts, leases, utilities, licenses, public or statutory
obligations, or to secure the performance of bids, trade contracts, government contracts and leases, statutory obligations, surety, stay, indemnity, warranty, release, judgment, customs, appeal, performance bonds, guarantees of government contracts,
return of money bonds, bankers’ acceptance facilities and obligations of a similar nature (including those to secure health, safety and environmental
53
obligations), and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, or as security for contested Taxes or import or
customs duties or for the payment of rent, or other obligations of like nature, in each case incurred in the ordinary course of business or consistent with past practice;
(3)
Liens with respect to outstanding motor vehicle fines and Liens imposed by law or regulation, including
carriers’, warehousemen’s, mechanics’, landlords’, suppliers’, materialmen’s, repairmen’s, architects’, construction contractors’ or other similar Liens, in each case for amounts not overdue for
a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith by appropriate proceedings;
(4)
Liens for Taxes (i) that are not overdue for a period of more than 60 days or not yet payable or subject
to penalties for nonpayment or that are being contested in good faith by appropriate proceedings; provided that appropriate reserves required pursuant to GAAP (or other applicable accounting principles) have been made in respect thereof,
(ii) that would not reasonably be expected to have a material adverse effect or (iii) for property Taxes on property of the Company or one of its Subsidiaries that the Company (or the applicable Subsidiary) has determined to abandon if the
sole recourse for such Tax is to such property;
(5)
encumbrances, charges, ground leases, easements (including reciprocal easement agreements), survey exceptions,
restrictions, encroachments, protrusions, by-law, regulation, zoning restrictions 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, exceptions on title
policies insuring Liens granted on any mortgaged properties or any other collateral or Liens incidental to the conduct of the business of such Person or to the ownership of its properties, including servicing agreements, development agreements, site
plan agreements, subdivision agreements, facilities sharing agreements, cost sharing agreements and other similar agreements, charges or encumbrances, which do not in the aggregate materially interfere with the ordinary course conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole;
(6)
Liens (a) securing Hedging Obligations, Cash Management Obligations and the costs thereof; (b) that
are rights of set-off, rights of pledge or other bankers’ Liens (i) relating to treasury, depository and cash management services or any automated clearing house transfers of funds in the ordinary
course of business or consistent with past practice, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary or
consistent with past practice or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business or
54
consistent with past practice; (c) on cash accounts securing Indebtedness and other Obligations permitted to be incurred under Section 3.2(b)(8)(e) with financial institutions;
(d) 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; and (e) (i) of a collection bank arising under Section 4-210 of the UCC or any comparable or successor provision on items in the course of collection and (ii) in favor
of a banking or other financial institution or electronic payment service providers arising as a matter of law encumbering deposits (including the right of set-off) arising in the ordinary course of business
in connection with the maintenance of such accounts and (iii) arising under customary general terms and conditions of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products
and proceeds thereof, which Liens, in any event, do not secure any Indebtedness;
(7)
leases, licenses, subleases and sublicenses of assets (including real property, intellectual property, software
and other technology rights), in each case entered into in the ordinary course of business, consistent with past practice or, with respect to intellectual property, software and other technology rights, that are not material to the conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole;
(8)
Liens securing or otherwise arising out of judgments, decrees, attachments, orders or awards not giving rise to
an Event of Default under Section 6.1(a)(5);
(9)
(a) Liens securing Finance Lease Obligations, or Purchase Money Obligations, or securing the payment of all or
a part of the purchase price of, or securing Indebtedness or other Obligations incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business;
provided that (i) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be incurred under this Indenture and (ii) any such Liens may not extend to any assets or property of the Company or any
Restricted Subsidiary other than assets and property affixed or appurtenant thereto and accessions, additions, improvements, proceeds, dividends or distributions thereof, including after-acquired property that is (A) affixed or incorporated
into the property or assets covered by such Lien, (B) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and
(C) the proceeds and products thereof and (b) any interest or title of a lessor, sublessor, franchisor, licensor or sublicensor or secured by a lessor’s, sublessor’s, franchisor’s, licensor’s or sublicensor’s
interest under any Finance Lease Obligations or Non-Financing Lease Obligations;
(10)
Liens arising from UCC financing statements, including precautionary financing statements (or similar filings)
regarding operating leases or consignments entered into by the Company and its Restricted Subsidiaries;
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(11)
Liens existing on the Issue Date, but excluding Liens securing the Credit Agreements and the Second Lien Notes
and related Guarantees;
(12)
Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Subsidiary (or
at the time the Company or a Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation or other business combination transaction with or into the Company or any
Restricted Subsidiary); provided, however, that such Liens are not created in anticipation of such other Person becoming a Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that
such Liens are limited to all or part of the same property, other assets or stock (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof, including
after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or
include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the Obligations relating to any Indebtedness or
other obligations to which such Liens relate;
(13)
Liens securing Obligations relating to any Indebtedness or other obligations of the Company or a Restricted
Subsidiary owing to the Company or another Restricted Subsidiary (provided that, solely with respect to Indebtedness required to be subordinated under Section 3.2(b)(3), such Lien shall be subordinated to the Liens on the
Collateral securing the Notes), or Liens in favor of the Company or any Restricted Subsidiary or the Trustee;
(14)
Liens securing Refinancing Indebtedness incurred to refinance Indebtedness that was previously so secured, and
permitted to be secured under this Indenture; provided that any such Lien is limited to all or part of the same property or assets (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds,
dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such
Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements under which the original Lien arose,
could secure) the Obligations relating to the Indebtedness or other obligations being refinanced or is in respect of property or assets that is or could be the security for or subject to a Permitted Lien hereunder;
(15)
(a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have
been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Company or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar
arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property;
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(16)
any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint
venture securing financing arrangement, joint venture or similar arrangement pursuant to any joint venture securing financing agreement, joint venture or similar agreement;
(17)
Liens on property or assets under construction (and related rights) in favor of a contractor or developer or
arising from progress or partial payments by a third party relating to such property or assets;
(18)
Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for
the sale or purchase of goods entered into in the ordinary course of business or consistent with past practice;
(19)
Liens securing Indebtedness and other Obligations in respect of (a) Credit Facilities, including any
letter of credit facility relating thereto, under Section 3.2(b)(1) and (b) obligations of the Company or any Subsidiary in respect of any Cash Management Obligation or Hedging Obligation provided by any lender party
to any Credit Facility or Affiliate of such lender (or any Person that was a lender or an Affiliate of a lender at the time the applicable agreements in respect of such Cash Management Obligation or Hedging Obligation were entered into);
(20)
Liens securing Indebtedness and other Obligations under Section 3.2(b)(5);
provided that such Liens shall only be permitted if such Liens are limited to all or part of the same property or assets, including Capital Stock (plus property and assets affixed or appurtenant thereto and additions, improvements,
accessions, proceeds, dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien
securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) acquired, or of any Person acquired or merged, consolidated or amalgamated
with or into the Company or any Restricted Subsidiary, in any transaction to which such Indebtedness or other Obligation relates;
(21)
[reserved];
(22)
[reserved];
(23)
Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness or
other obligations of such Unrestricted Subsidiary;
(24)
Liens deemed to exist in connection with Investments permitted under clause (4) of the definition of
“Cash Equivalents”;
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(25)
Liens on (i) goods the purchase price of which is financed by a documentary letter of credit issued for
the account of the Company or any Subsidiary or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar
instruments and (ii) specific items of inventory or other goods and proceeds of any Person securing such Person’s 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; provided that any such Liens attach only to the goods and inventory covered thereby and proceeds thereof;
(26)
Liens on vehicles or equipment of the Company or any Restricted Subsidiary in the ordinary course of business
or consistent with past practice;
(27)
Liens on assets or securities deemed to arise in connection with and solely as a result of the execution,
delivery or performance of contracts to sell such assets or securities if such sale is otherwise not prohibited by this Indenture;
(28)
(a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect
thereto, and (b) Liens, pledges, deposits made or other security provided to secure liabilities to, or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of), insurance
carriers in the ordinary course of business or consistent with past practice;
(29)
Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase
agreement permitted under this Indenture;
(30)
Liens (i) on cash advances or escrow deposits in favor of 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 otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement
with respect to such Investment), and (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in an asset sale, in each case, solely to the extent such Investment or sale, transfer, lease or other
disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(31)
Liens securing Indebtedness and other Obligations in an aggregate principal amount not to exceed the greater of
(a) $50 million and (b) 15.0% of LTM EBITDA at the time incurred; provided that, to the extent such Lien is secured by the Collateral, such Lien expressly has Junior Lien Priority relative to the Notes and related Note Guarantees;
(32)
Liens on cash deposits not to exceed $25 million in the aggregate at any time outstanding for the purpose
of collateralizing certain financial obligations under any workers’ compensation, unemployment insurance and other types of social security in the ordinary course;
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(33)
[reserved];
(34)
Liens deemed to exist in connection with Investments in repurchase agreements permitted by the covenant
described under Section 3.3, provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(35)
Liens arising in connection with a Qualified Securitization Financing or a Receivables Facility;
(36)
Settlement Liens;
(37)
rights of recapture of unused real property in favor of the seller of such property set forth in customary
purchase agreements and related arrangements with any government, statutory or regulatory authority;
(38)
the rights reserved to or vested in any Person or government, statutory or regulatory authority by the terms of
any lease, license, franchise, grant or permit held by the Company or any Restricted Subsidiary or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition
to the continuance thereof;
(39)
restrictive covenants affecting the use to which real property may be put and Liens or covenants restricting or
prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not interfere with the ordinary conduct of the business of the
Company or any Restricted Subsidiary;
(40)
Liens on property, assets or Permitted Investments used to defease or to satisfy or discharge Indebtedness;
provided that such defeasance, satisfaction or discharge is not prohibited by this Indenture;
(41)
Liens relating to escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from
the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time
of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in
an escrow account or similar arrangement to be applied for such purpose;
(42)
Liens securing (i) the Notes (other than any Additional Notes) and the related Note Guarantees, and
(ii) Indebtedness incurred pursuant to Section 3.2(b)(4)(e) and Section 3.2(b)(11); provided that any such Indebtedness pursuant to clause (ii) shall be subject to the Junior Lien
Intercreditor Agreement;
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(43)
Liens on assets securing any Indebtedness owed to any Captive Insurance Subsidiary by the Company or any
Restricted Subsidiary;
(44)
Liens arising in connection with any Permitted Intercompany Activities or Permitted Tax Restructuring; and
(45)
with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by law.
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 Company 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 Tax Distribution” means:
(a)
if and for so long as the Company is a member (or is an entity treated as disregarded from a member) of a group
filing a consolidated, group, affiliate, unitary, combined or similar Tax return with any Parent Entity, any dividends or other distributions to fund any income or similar Taxes for which such Parent Entity is liable up to an amount not to exceed
with respect to such Taxes the amount of any such Taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis calculated as if the Company and its Subsidiaries had paid Tax on a
consolidated, combined, group, affiliated, unitary or similar basis on behalf of a consolidated, combined, affiliated, unitary or similar group consisting only of the Company and its Subsidiaries; and
(b)
for any taxable year (or portion thereof) ending after the Issue Date for which the Company is treated as a
disregarded entity, partnership, or other flow-through entity for federal, state, provincial, territorial, and/or local income Tax purposes, the payment of dividends or other distributions to the Company’s direct owner(s) to fund the income
Tax liability of such owner(s) (or, if a direct owner is a pass-through entity, of the indirect owner(s)) for such taxable year (or portion thereof) attributable to the operations and activities of the Company and its direct and indirect
Subsidiaries, in an aggregate amount not the exceed the product of (x) the highest combined marginal federal and applicable state, provincial, territorial, and/or local statutory income Tax rate (after taking into account the deductibility of
U.S. state and local income Tax for U.S. federal income Tax purposes) and (y) the taxable income of the Company for such taxable year (or portion thereof).
“Permitted Tax Restructuring” means any reorganizations and other activities related to tax planning and tax reorganization
(as determined by the Company in good faith) so long as such Permitted Tax Restructuring is not materially adverse to the beneficial owners of the Notes.
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“Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the
commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Stock” as applied to the
Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
“Public Company Costs” means, as to any
Person, 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 and costs relating to compliance with the
provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to enhanced accounting
functions and investor relations, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising
solely by virtue of the listing of such Person’s equity securities on a national securities exchange or issuance of public debt securities.
“Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, expansion,
construction, installation, replacement, repair or improvement of property (real or personal), equipment or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets, or the acquisition of the
Capital Stock of any Person owning such property or assets, or otherwise.
“QIB” means any “qualified
institutional buyer” as such term is defined in Rule 144A.
“Qualified Securitization Financing” means any
Securitization Facility that meets the following conditions: (i) the Board of Directors shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and other provisions) is in
the aggregate economically fair and reasonable to the Company and its Restricted Subsidiaries, (ii) all sales of Securitization Assets and related assets by the Company or any Restricted Subsidiary to the Securitization Subsidiary or any other
Person are made for fair consideration (as determined in good faith by the Company) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be fair and reasonable terms (as determined in good faith by the
Company) and may include Standard Securitization Undertakings. The Receivables Securitization Program will be deemed to be a Qualified Securitization Financing.
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“Receivables Assets” means (a) any accounts receivable owed to the
Company or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such
accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable
factoring arrangement.
“Receivables Facility” means an arrangement between the Company or a Subsidiary and a
commercial bank, an asset based lender or other financial institution or an Affiliate thereof pursuant to which (a) the Company or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank, asset based lender or
other financial institution (or such Affiliate) Receivables Assets and (b) the obligations of the Company or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for
Securitization Repurchase Obligations) to the Company and such Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Company) and may
include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangements.
“Receivables
Securitization Program” means the Securitization Facility entered into in respect of its Receivable Assets under the Receivables Purchase Agreement, dated as of October 18, 2025, by and among Accendra Medical, LLC (f/k/a
Owens & Minor Medical, LLC), as the initial servicer, Accendra Funding LLC (f/k/a O&M Funding LLC), as seller, the purchasers from time to time party thereto, PNC Bank, National Association, as administrative agent, and PNC Capital
Markets LLC, as structuring agent, and as amended and restated by that certain Amended and Restated Receivables Purchase Agreement, dated as of December 31, 2025, by and among Byram Healthcare Centers, Inc., as the initial servicer, Accendra
Funding LLC (f/k/a O&M Funding LLC), as seller, the purchasers from time to time party thereto, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC, as structuring agent, and as further amended, supplemented,
modified, extended, renewed, restated or refinanced from time to time.
“refinance” means refinance, refund, replace,
renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “refinances,” “refinanced” and
“refinancing” as used for any purpose in this Indenture shall have a correlative meaning.
“Refinancing
Indebtedness” means Indebtedness that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness existing on the Issue Date or Incurred in
compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of the Company or another Restricted
Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided, however, that:
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(1)
(a) such Refinancing Indebtedness 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 refunded or refinanced; and (b) to the extent such Refinancing Indebtedness
refinances Subordinated Indebtedness, Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Subordinated Indebtedness, Disqualified Stock or Preferred Stock, respectively, and, in the case of Subordinated Indebtedness, is
subordinated to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(2)
Refinancing Indebtedness shall not include:
(i)
Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Company that is not the Company or a
Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Guarantor; or
(ii)
Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that refinances
Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary;
(3)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount,
an aggregate issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding under the Indebtedness being Refinanced (plus (x) an amount
equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under a Credit Facility or other financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be
drawn in compliance with Section 3.2 immediately prior to such refinancing and (y) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs
and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such Refinancing).
Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or
repayment of any such Credit Facility or other Indebtedness.
“Regulation S” means Regulation S under the Securities
Act.
“Regulation S-X” means Regulation
S-X under the Securities Act.
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“Related Taxes” means
(1)
any Taxes, including sales, use, transfer, rental, ad valorem, value added, stamp, property,
consumption, franchise, license, capital, registration, business, customs, net worth, gross receipts, excise, occupancy, intangibles or similar Taxes and other similar fees and expenses (other than (x) Taxes measured by income and
(y) withholding Taxes), required to be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of its:
(a)
being organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity
interests of any corporation or other entity other than, directly or indirectly, the Company or any of the Company’s Subsidiaries) or otherwise maintain its existence or good standing under applicable law;
(b)
being a holding company parent, directly or indirectly, of the Company or any of the Company’s
Subsidiaries;
(c)
receiving dividends from or other distributions in respect of the Capital Stock of, directly or indirectly, the
Company or any of the Company’s Subsidiaries; or
(d)
having made any payment in respect to any of the items for which the Company is permitted to make payments to
any Parent Entity pursuant to Section 3.3; or
(2)
any Permitted Tax Distribution.
“Reserved Indebtedness Amount” has the meaning set forth in Section 3.2(c)(9).
“Restricted Investment” means any Investment other than a Permitted Investment.
“Restricted Notes” means Initial Notes and Additional Notes bearing the Restricted Notes Legend.
“Restricted Notes Legend” means the legend set forth in Section 2.1(d)(1).
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
“Revolving Credit Agreement” means the Credit Agreement, dated as of March 10, 2021, as amended most recently on or
about the Issue Date, by and among Apria, Inc., Barista Acquisition I, LLC, Barista Acquisition II, LLC and Byram Healthcare Centers, Inc. and the Company as borrowers, the guarantors from time to time party thereto, Bank of America, N.A., as
administrative agent and collateral agent, a syndicate of financial institutions party thereto, the other agents party thereto, and each lender from time to time party thereto, together with the related documents thereto (including the revolving
loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security documents) and as further amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise
changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, including indentures, incurred to
refinance, substitute,
64
supplement, replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the
borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agreements.
“Revolving Credit Agreement Collateral Agent” means Bank of America, N.A., in its capacity as the collateral agent for the
“Secured Parties” as defined in the Revolving Credit Agreement, together with its successors and permitted assigns under the Revolving Credit Agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a
Nationally Recognized Statistical Rating Organization.
“Sale and Leaseback Transaction” means any arrangement
providing for the leasing by the Company 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 Company or such Restricted Subsidiary to a third Person in
contemplation of such leasing.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment
decisions independently from such Holder 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 and any other Affiliate of such Holder that is not
a Screened Affiliate and such screens prohibit the sharing of information with respect to the Company or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder 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 any other Affiliate of such Holder that is acting in concert with such
Holders in connection with its investment in the Notes.
“SEC” means the U.S. Securities and Exchange Commission or any
successor thereto.
“Second Lien Notes” means the Company’s 9.750% Senior Secured Second Lien Notes due 2033
issued by the Company pursuant to the Second Lien Indenture in the Exchange Offers.
“Second Lien Notes Collateral
Agent” means Regions Bank, in its capacity as collateral agent for the holders of the Second Lien Notes Obligations under the Second Lien Notes Indenture and the Second Lien Notes Collateral Documents and any successor pursuant to the
provisions of this Indenture and the Second Lien Notes Collateral Documents.
“Second Lien Notes Collateral Documents”
means, collectively, the Junior Lien Intercreditor Agreement, any other intercreditor agreements entered into from time to time, the Second Lien Notes Security Documents and the supplements thereto.
“Second Lien Notes Documents” means the Second Lien Notes (including any additional Second Lien Notes pursuant to Second
Lien Indenture), the Second Lien Note Guarantees, the Second Lien Notes Collateral Documents and the Second Lien Notes Indenture.
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“Second Lien Notes Guarantees” means the Guarantees of the Second Lien
Notes.
“Second Lien Notes Indenture” means the indenture governing the Second Lien Notes dated as of the Issue Date,
by and among the Company, the guarantors party thereto from time to time and Regions Bank, as trustee (in such capacity, the “Second Lien Notes Trustee”) and collateral agent.
“Second Lien Notes Obligations” means the Obligations in respect of the Second Lien Notes, the Second Lien Notes Indenture,
the Second Lien Notes Guarantees, the Second Lien Notes Collateral Documents and the other Second Lien Notes Documents.
“Second
Lien Notes Secured Parties” means the Second Lien Notes Trustee, the Second Lien Notes Collateral Agent and the holders of the Second Lien Notes.
“Second Lien Notes Security Agreement” means that certain Security Agreement, dated as of the Issue Date, among the
Company, the guarantors party thereto from time to time and the Second Lien Notes Collateral Agent.
“Second Lien Notes Security
Documents” means the Second Lien Notes Security Agreement, each joinder to the Second Lien Notes Security Agreement, all security agreements, pledge agreements, control agreements, collateral assignments, mortgages, deeds of trust or other
grants or transfers for security or agreements related thereto executed and delivered by the Company or any guarantor pursuant to which a Lien is granted (or purported to be granted) in favor of the Second Lien Notes Collateral Agent on behalf of
itself, the Second Lien Notes Trustee, the holders of the Second Lien Notes and the other Second Lien Notes Secured Parties to secure the Second Lien Notes and the Second Lien Note Guarantees, in each case, as amended, restated, amended and
restated, supplemented, replaced or otherwise modified from time to time.
“Second Lien Obligations” means,
collectively, (1) the Second Lien Notes Obligations and (2) and any other Additional Second Lien Obligations.
“Secured
Indebtedness” means any Indebtedness secured by a Lien.
“Securities Act” means the Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“Securitization Asset” means
(a) any accounts receivable, mortgage receivables, loan receivables, royalty, franchise fee, license fee, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and (b) all collateral
securing such receivable or asset, all contracts and contract rights, guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily
transferred (or in respect of which security interests are customarily granted) together with accounts or assets in connection with a securitization, factoring or receivable sale transaction.
“Securitization Facility” means any of one or more securitization, financing, factoring or sales transactions, as amended,
supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Company or any of the Restricted Subsidiaries sells, transfers, pledges or otherwise conveys any Securitization Assets (whether now existing or
arising in the future) to a Securitization Subsidiary or any other Person.
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“Securitization Fees” means distributions or payments made directly or by
means of discounts with respect to any Securitization Asset or Receivables Asset or participation interest therein issued or sold in connection with, and other fees, expenses and charges (including commissions, yield, interest expense and fees and
expenses of legal counsel) paid in connection with, any Qualified Securitization Financing or Receivables Facility.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets or Receivables Assets in a
Qualified Securitization Financing or a Receivables Facility to repurchase or otherwise make payments with respect to Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result
of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Company in each case formed for the purpose of and that solely
engages in one or more Qualified Securitization Financings or Receivables Facilities and other activities reasonably related thereto or another Person formed for this purpose.
“Series” means (a) (x) with respect to the First Lien Secured Parties, each of (i) the Revolving Credit Agreement
Secured Parties (in their capacities as such), (ii) Term Loan Credit Agreement Secured Parties (in their capacities as such), (iii) the Notes Secured Parties (in their capacities as such) and (iv) the Additional First Lien Secured Parties (in
their capacities as such) that become subject to the First Lien Intercreditor Agreement that are represented by a common Collateral Agent (in its capacity as such for such Additional First Lien Secured Parties) and (y) with respect to the
Junior Lien Secured Parties, each of (i) the Second Lien Notes Secured Parties (in their capacities as such) and (ii) the holders from time to time of any Junior Lien Obligations that are represented by a common representative (in its
capacity as such for such Junior Lien Obligations) and (b) (x) with respect to any First Lien Obligations, each of (i) the First Lien Credit Agreement Obligations, (ii) the Notes Obligations and (iii) the Additional First Lien
Obligations incurred after the Issue Date, the holders of which are to be represented by a common Collateral Agent (in its capacity as such for such Additional First Lien Obligations) under the First Lien Intercreditor Agreement and (y) with
respect to any Junior Lien Obligations, each of (i) the Second Lien Notes Obligations and (ii) the Additional Junior Lien Obligations incurred after the Issue Date, the holders of which are to be represented by a common Collateral Agent
(in its capacity as such for such Additional Junior Lien Obligations) under the Junior Lien Intercreditor Agreement.
“Settlement” means the transfer of cash or other property with respect to any credit or debit card charge, check or other
instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
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“Settlement Asset” means any cash, receivable or other property,
including a Settlement Receivable, due or conveyed to a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.
“Settlement Indebtedness” means any payment or reimbursement obligation in respect of a Settlement Payment.
“Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance
of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).
“Settlement Payment” means the transfer, or contractual undertaking (including by automated clearing house transaction) to
effect a transfer, of cash or other property to effect a Settlement.
“Settlement Receivable” means any general
intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.
“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(w)(1) 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 businesses, services or activities
engaged in by the Company or any of its Subsidiaries or any Associates on the Issue Date, (b) any businesses, services and activities engaged in by the Company or any of its Subsidiaries or any Associates that are related, complementary,
incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof, and (c) a Person conducting a business, service or activity specified in clauses (a) and (b), and any Subsidiary thereof. For the
avoidance of doubt, any Person that invests in or owns Capital Stock or Indebtedness of another Person that is engaged in a Similar Business shall be deemed to be engaged in a Similar Business.
“Standard Securitization Undertakings” means representations, warranties, covenants, guarantees and indemnities entered
into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Securitization Facility or Receivables Facility, including those relating to the servicing of the assets of a Securitization
Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking or, in the case of a Receivables Facility, a non-credit related
recourse accounts receivable factoring arrangement.
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“Stated Maturity” means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any
such principal prior to the date originally scheduled for the payment thereof.
“Subordinated Indebtedness” means
(i) any Indebtedness (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the Notes pursuant to a written agreement, (ii) any Junior Lien Obligations or (iii) any
unsecured Indebtedness for borrowed money of any Note Party.
“Subsidiary” means, with respect to any Person:
(1)
any corporation, association, or other business entity (other than a partnership, joint venture, limited
liability company or similar entity) of which more than 50% 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; or
(2)
any partnership, joint venture, limited liability company or similar entity of which:
(a)
more than 50% 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 interests or otherwise; and
(b)
such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such
entity.
“Taxes” means all present and future taxes, levies, imposts, deductions, charges,
duties, assessments, fees and withholdings (including backup withholding) and any charges of a similar nature (however denominated and including interest, penalties and other liabilities with respect thereto) that are imposed by any governmental
authority or other taxing authority.
“Term Loan Credit Agreement” means the Term Loan Credit Agreement, dated as of
March 29, 2022, as amended most recently on or about the Issue Date, by and among the Apria, Inc., Barista Acquisition I, LLC, Barista Acquisition II, LLC, Byram Healthcare Centers, Inc. and the Company, as borrowers, the guarantors from time
to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, a syndicate of financial institutions party thereto, the other agents party thereto, and each lender from time to time party thereto, together with the
related documents thereto (including any Guarantees and security documents), and as further amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements
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(and related documents) governing Indebtedness, including indentures, incurred to refinance, substitute, supplement, replace or add to (including increasing the amount available for borrowing or
adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or one or more successors to the Credit
Agreement or one or more new credit agreements.
“Term Loan Credit Agreement Collateral Agent” means JPMorgan Chase
Bank, N.A., in its capacity as the collateral agent for the Term Loan Credit Agreement Secured Parties, together with its successors and permitted assigns under the Term Loan Credit Agreement.
“Total Assets” means, as of any date, the total consolidated assets of the Company and its Restricted Subsidiaries on a
consolidated basis, as shown on the most recent consolidated balance sheet of the Company and its Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained in the definition of Fixed Charge
Coverage Ratio.
“Transaction Expenses” means any fees, costs and expenses (including all legal, accounting and
other professional fees, costs and expenses) incurred or paid by the Company or any Restricted Subsidiary associated or in connection with the Transactions, including any fees, costs and expenses associated with payments or distributions to
dissenting stockholders (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential) with respect thereto).
“Transactions” means the issuance of the Notes and the use of proceeds therefrom, the issuance of the Second Lien Notes,
the Exchange Offers, the amendment to the Term Loan Credit Agreement on or about the Issue Date, the amendment of or entry into, as applicable, the Revolving Credit Agreement on or about the Issue Date, the repayment of existing indebtedness, the
payment of fees, expenses and premiums incurred in connection with the foregoing and other related transactions and use of proceeds, in each case, as described in the Exchange Offering Memorandum.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trust Officer” means, when used with respect to the Trustee or Notes Collateral Agent, any officer within the Corporate
Trust Office of the Trustee (or any successor group of the Trustee), including any vice president, assistant vice president, assistant secretary, 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 relating to this Indenture is referred because of such Person’s knowledge of and familiarity with
the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
“Trustee” means Regions Bank, in its capacity as trustee under the Indenture, together with its successors and assigns.
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“UCC” means the Uniform Commercial Code as in effect from time to time in
the State of New York; provided, however, that at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of a collateral agent’s security interest in any item or portion of the collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
“Unrestricted Subsidiary” means:
(1)
any Subsidiary (other than the Company or any direct or indirect parent entity of the Company) of the Company
that is designated by the Company in the manner provided below; and
(2)
any Subsidiary of an Unrestricted Subsidiary.
The Company may not designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a
Subsidiary through merger, consolidation or other business combination transaction, or Investment therein), to be an Unrestricted Subsidiary without the prior written consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes.
“U.S. Government Obligations” means securities that are (1) direct obligations of the United
States of America for the timely payment of which its full faith and credit is pledged, (2) 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 of the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, or (3) money market securities that invest
solely in the foregoing, and in the case of (1) and (2) above, shall also include a depositary 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
Obligations or a specific payment of principal of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depositary 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 depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depositary receipt.
“Voting Stock” of a Person means all classes of Capital
Stock of such Person then outstanding and normally entitled to vote in the election of directors.
“Weighted Average Life to
Maturity” means, when applied to any Indebtedness, at any date, the quotient obtained by dividing:
(1)
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
(2)
the sum of all such payments;
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provided that, for purposes of determining the Weighted Average Life to Maturity of
any Indebtedness, the effects of any prepayments or amortization made on such Indebtedness prior to the date of such determination will 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.
“Wholly Owned Domestic Subsidiary” means a Domestic Subsidiary of the Company, which is Wholly Owned by the
Company or a Guarantor.
Section 1.2 Other Definitions.
Term
Defined in Section
Acceptable Commitment
3.5(a)(3)(ii)
Accounting Change
GAAP
Advance Offer
3.5(a)
Advance Portion
3.5(a)
Additional Restricted Notes
2.1(b)
Affiliate Transaction
3.8(a)
Agent Members
2.1(e)(2)
Applicable Premium Deficit
8.4(1)
Approved Foreign Bank
Cash Equivalents
Asset Disposition Offer
3.5(a)
Authenticating Agent
2.2
Available Amount
3.3(a)(4)(iii)
Change of Control Offer
3.9(a)
Change of Control Payment
3.9(a)
Change of Control Payment Date
3.9(a)(2)
Clearstream
2.1(b)
Covenant Defeasance
8.3
Covenant Satisfaction Officer’s Certificate
6.1(a)
Declined Excess Proceeds
3.5(a)
Defaulted Interest
2.15
Directing Holder
6.1(a)
Election Date
3.3(b)
equity incentives
Consolidated Net Income
Euroclear
2.1(b)
Event of Default
6.1(a)
Excess Proceeds
3.5(a)
Excess Proceeds Percentage
3.5(a)
Final Decision
6.1(a)
Fixed Charge Coverage Ratio Calculation Date
Fixed Charge Coverage Ratio
Foreign Disposition
3.5(b)(i)
Global Notes
2.1(b)
Guaranteed Obligations
10.1
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Increased Amount
3.6
Initial Agreement
3.4(a)(16)
Initial Default
6.1(c)
Issuer Order
2.2
Judgment Currency
13.19
LCT Election
1.4(c)
LCT Public Offer
1.4(c)
LCT Test Date
1.4(c)
Legal Defeasance
8.2
Legal Holiday
13.6
Litigation
6.1(a)
Notes Register
2.3
Noteholder Direction
6.1(a)
Performance References
Derivative Instrument
Permitted Debt
3.2(b)
Permitted Payments
3.3(b)
Position Representation
6.1(a)
primary obligations
Contingent Obligations
primary obligor
Contingent Obligations
Proceeds Application Period
3.5(a)(3)
protected purchaser
2.11
Redemption Date
5.7(a)
Registrar
2.3
Regulation S Global Note
2.1(b)
Regulation S Notes
2.1(b)
Refunding Capital Stock
3.3(b)(2)
Resale Restriction Termination Date
2.6(b)
Reserved Indebtedness Amount
3.2(c)(9)
Restricted Payment
3.3(a)
Restricted Period
2.1(b)
Rule 144A Global Note
2.1(b)
Rule 144A Notes
2.1(b)
Special Interest Payment Date
2.15(a)
Special Record Date
2.15(a)
Successor Company
4.1(a)(1)
Suspended Covenants
3.21
Suspension Period
3.21
Treasury Capital Stock
3.3(b)(2)
Verification Covenant
6.1(a)
Verification Covenant Officer’s Certificate
6.1(a)
Section 1.3 [Reserved].
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Section 1.4 Rules of Construction.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or” is not exclusive;
(4) “including” means including without limitation;
(5) words in the singular include the plural and words in the plural include the singular;
(6) “will” shall be interpreted to express a command;
(7) 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;
(8) the principal amount of any preferred stock shall be (i) the maximum liquidation value of such preferred stock or
(ii) the maximum mandatory redemption or mandatory repurchase price with respect to such preferred stock, whichever is greater;
(9) all amounts expressed in this Indenture or in any of the Notes in terms of money refer to the lawful currency of the United
States of America;
(10) the words “herein,” “hereof” and “hereunder” and other words
of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(11)
except as otherwise stated, (a) references herein to Articles, Sections and Exhibit mean the Articles and Sections of and Exhibits to this Indenture and (b) each reference herein to a particular Article or Section includes the Sections,
subsections and paragraphs subsidiary thereto; and
(12) unless otherwise specifically indicated, the term
“consolidated” with respect to any Person refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of
such Person.
(b) Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion thereof) is
incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, 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 exceptions, thresholds or baskets (other than ratio based exceptions, thresholds and baskets) on the same date. Each item of Indebtedness that is incurred or issued, each Lien incurred and each
other transaction undertaken will be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant ratio based test.
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Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or
any portion thereof) is incurred or issued, any Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be calculated without regard to the incurrence of any
indebtedness to fund any OID or upfront fees to be paid in connection with the incurrence of such Indebtedness on reliance of such ratio based exception.
Any calculation or measure that is determined with reference to the Company’s financial statements (including Consolidated EBITDA,
Consolidated Interest Expense, Consolidated Net Income, Fixed Charges, Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio and Consolidated Total Leverage Ratio) may be determined with reference to the financial
statements of a Parent Entity instead, so long as such Parent Entity does not hold any material assets other than, directly or indirectly, the Capital Stock of the Company.
(c) When calculating the availability under any basket 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 and the use of proceeds thereof, the incurrence or
creation of Liens, repayments, Restricted Payments and Asset Dispositions), in each case, at the option of the Company (the Company’s election to exercise such option, an “LCT Election”), the date of determination for
availability under any such basket or ratio and 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 agreement for such Limited Condition Transaction is entered into (or, if applicable, the date of delivery of an irrevocable
declaration 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 applies, the date on which a “Rule 2.7 announcement” of a firm
intention to make an offer (or equivalent announcement in another jurisdiction) (an “LCT Public Offer”) in respect of a target of a 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 and the use of proceeds thereof, the incurrence or creation of Liens, repayments,
Restricted Payments and Asset Dispositions) and any related pro forma adjustments, the Company 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, assumed 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 Company may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of such financial statements, in which case, such date of redetermination shall thereafter 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, test 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 transaction related thereto (including acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof,
the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions) and (c) Consolidated Interest Expense for purposes of the Fixed Charge Coverage Ratio will be calculated using an assumed interest rate as reasonably
determined by the Company.
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For the avoidance of doubt, if the Company 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 as a result of fluctuations in any such ratio,
test or basket, including due to fluctuations in EBITDA or Total Assets of the Company or the Person subject to such Limited Condition Transaction, 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; (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 an Default or 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 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 or date for
redemption, purchase or repayment specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes (or, if applicable, the irrevocable notice is terminated, expires or passes or, as applicable, the offer in
respect of an LCT Public Offer for, such acquisition is terminated), 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.
ARTICLE II
THE NOTES
Section 2.1
Form, Dating and Terms.
(a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture
is unlimited. The Initial Notes will be the Notes issued during the period beginning on the date hereof and ending on the Exchange Offer Final Settlement Date. In addition, the Issuer may issue, from time to time in accordance with the provisions of
this Indenture, Additional Notes (as provided herein). Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of, other Notes pursuant to Sections 2.2, 2.6, 2.11, 2.13,
5.6 or 9.5, in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Section 3.9.
Notwithstanding anything to the contrary contained herein, the Issuer may not issue any Additional Notes, unless such issuance is in
compliance with Section 3.2.
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With respect to any Additional Notes, the Issuer shall set forth in one or more indentures
supplemental hereto, the following information:
(A) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(B) the issue price and the issue date of such Additional Notes,
including the date from which interest shall accrue; and
(C) whether such Additional Notes shall be Restricted Notes.
In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in relying upon,
in addition to the Opinion of Counsel and Officer’s Certificate required by Section 13.2, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such Additional Notes.
The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this Indenture,
provided that any Additional Notes will not be issued with the same CUSIP, ISIN or other identifying number as the Initial Notes unless such Additional Notes are fungible with the Initial Notes for U.S. federal income tax purposes. Holders of
the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to
vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.
(b) The Initial Notes and any
Additional Notes (if issued as Restricted Notes) (the “Additional Restricted Notes”) will be offered and issued initially only to (A) Persons they reasonably believe to be QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in reliance on Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, persons reasonably believed to be QIBs and purchasers in
reliance on Regulation S, in each case, in accordance with the procedure described herein. Additional Notes offered after the date hereof may be offered and sold by the Issuer from time to time pursuant to one or more purchase agreements in
accordance with applicable law.
Initial Notes and Additional Restricted Notes offered and sold to persons reasonably believed to be QIBs
in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and
made a part of this Indenture, including appropriate legends as set forth in Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee, as custodian for DTC, duly executed by the Issuer and
authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
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Initial Notes and any Additional Restricted Notes offered and sold to non-U.S. Persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global Note substantially in the form of
Exhibit A, including appropriate legends as set forth in Section 2.1(d) (the “Regulation S Global Note”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the
Trustee as custodian for DTC in the manner described in this Article II. Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the
“Restricted Period”), interests in the Regulation S Global Note may only be transferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in
accordance with the transfer and certification requirements described herein.
Investors may hold their interests in the Regulation S
Global Note through organizations other than Euroclear Bank S.A./N.V. (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”) that are participants in DTC’s system or
directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream
will hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn,
will hold such interests in the applicable Regulation S Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
The Regulation S Global Note may be represented by more than one certificate if so required by DTC’s rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
The Rule 144A Global Note and the Regulation S Global Note are sometimes collectively herein referred
to as the “Global Notes.”
The principal of (and premium, if any) and interest on the Notes shall be payable at the
office or agency of the Paying Agent designated by the Issuer maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such
purpose pursuant to Section 2.3; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as
such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global
Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if
any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account maintained by the payee
with a bank in the United States 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 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee or Paying Agent, as applicable, may accept in its discretion).
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The Notes may have notations, legends or endorsements required by law, stock exchange rule
or usage, in addition to those set forth on Exhibit A and in Section 2.1(d). The Issuer shall approve any notation, endorsement or legend on the Notes. Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, or a supplemental indenture to
this Indenture, expressly agree to be bound by such terms.
(c) Denominations. The Notes shall be issuable only in fully registered
form in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof.
(d) Restrictive and Global Note
Legends.
(1) Unless and until (i) an Initial Note or an Additional Note issued as a Restricted Note is sold under
an effective registration statement or (ii) the Issuer receives an Opinion of Counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act, the Rule 144A Global Note, the Regulation S Global Note, and shall each bear the following legend on the face thereof:
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”)), OR (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”), (2) AGREES NOT TO OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE DATE THE NOTES WERE ISSUED AND THE LAST DATE THAT THE ISSUER OR ANY OF ITS
AFFILIATES WERE THE OWNER OF THE NOTES OR ANY PREDECESSOR OF THE NOTES ONLY (A) TO THE ISSUER, (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
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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 (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
(2) Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR THE AGENT OF THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.
TRANSFERS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(3) If issued with original issue discount
(within the meaning of Section 1273 of the Code) for U.S. federal income tax purposes, each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
THIS GLOBAL NOTE HAS BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED) FOR U.S. FEDERAL INCOME TAX PURPOSES. A BENEFICIAL OWNER THAT IS A UNITED STATES PERSON FOR FEDERAL INCOME TAX PURPOSES GENERALLY WILL BE REQUIRED TO INCLUDE SUCH ORIGINAL ISSUE DISCOUNT IN
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GROSS INCOME AS INTEREST AS IT ACCRUES ON A CONSTANT YIELD TO MATURITY BASIS REGARDLESS OF SUCH PERSON’S REGULAR METHOD OF ACCOUNTING FOR U.S. FEDERAL INCOME TAX PURPOSES, AND IN ADVANCE OF
THE RECEIPT OF CASH PAYMENTS ATTRIBUTABLE TO SUCH INCOME. UPON WRITTEN REQUEST, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS GLOBAL NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND DATE OF THE NOTE, (2) THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3) THE YIELD TO MATURITY OF THE NOTE. HOLDERS SHOULD CONTACT THE REPRESENTATIVE OF THE COMPANY AT ITS ADDRESS AS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(e) Book-Entry Provisions. (i) This Section 2.1(e) shall apply only to Global Notes deposited with the
Trustee, as custodian for DTC, and for which the applicable procedures of DTC shall govern.
(1) Each Global Note initially
shall (x) be registered in the name of DTC or the nominee of DTC, (y) be delivered to the Notes Custodian for DTC and (z) bear legends as set forth in Section 2.1(d)(2). Transfers of a Global Note (but not a
beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to DTC, its successors or its respective nominees, except as set forth in Section 2.1(e)(4) and 2.1(f). If a beneficial
interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Notes Custodian will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the
principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an
interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be
subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2) Members of, or participants in, DTC (“Agent Members”) shall have no rights under this Indenture with
respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the custodian of DTC or under such Global Note, and DTC may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing, 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 DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
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(3) In connection with any transfer of a portion of the beneficial interest
in a Global Note pursuant to Section 2.1(f) to beneficial owners who are required to hold Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a decrease in the principal amount of such
Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Notes of
like tenor and amount.
(4) In connection with the transfer of an entire Global Note to beneficial owners pursuant to
Section 2.1(f), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(5) The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(6) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such
Global Note may be effected only through a book-entry system maintained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in
such Global Note shall be required to be reflected in a book entry.
(f) Definitive Notes. Except as provided below, owners of
beneficial interests in Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case
a successor depositary is not appointed by the Issuer within 90 days of such notice, (B) the Issuer in its sole discretion executes and deliver to the Trustee and Registrar an Officer’s Certificate stating that such Global Note shall be
so exchangeable or (C) an Event of Default has occurred and is continuing and the Registrar has received a written request from DTC. In the event of the occurrence of any of the events specified in the second preceding sentence or in clause
(A), (B) or (C) of the preceding sentence, the Issuer shall promptly make available to the Registrar a reasonable supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of
the Issuer or evidencing a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which either the Issuer or any affiliate of the Issuer
was an owner of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d)(1). If required to do so pursuant to any applicable law or regulation, beneficial owners may also obtain
Definitive Notes in exchange for their beneficial interests in a Global Note upon written request in accordance with DTC’s and the Registrar’s procedures.
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(1) Any Definitive Note delivered in exchange for an interest in a Global
Note pursuant to Section 2.1(e) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in
Section 2.1(d)(1).
(2) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note,
the Trustee will (x) cancel such Definitive Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange
involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal
amount not so transferred.
(3) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the
Trustee will cancel the Definitive Note being transferred or exchanged, (y) the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an
aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such transferee
or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder thereof, one or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder thereof.
(4) Notwithstanding anything to the contrary in this Indenture, in no event shall a Definitive Note be delivered upon exchange
or transfer of a beneficial interest in the Regulation S Global Note prior to the end of the Restricted Period.
Section 2.2
Execution and Authentication. One Officer of the Issuer shall sign the Notes for the Issuer by manual, facsimile, electronic (including a digital signature provided by DocuSign) or PDF signature. If the Officer whose signature is on a Note no
longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid
until an authorized officer of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be
dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee
shall authenticate and make available for delivery: (1) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $539,249,947 and (2) subject to the terms of this Indenture, Additional Notes for original issue
in an unlimited principal amount, in each case upon a written order of the Issuer signed by one Officer (the “Issuer Order”). Such Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global
Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the Holder of the Notes and whether the Notes are to be Initial Notes or Additional Notes. The Trustee may request and rely
upon an Issuer Order prior to authenticating any Notes hereunder.
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The Trustee may appoint an agent (the “Authenticating Agent”) reasonably
acceptable to the Issuer to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Issuer. Unless limited by the terms of such appointment, any such
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
In case any of the Issuer or any Guarantor, pursuant to Article
IV or Section 10.2, as applicable, shall be consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any
Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Issuer or any Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or other
disposition may (but shall not be required), from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate to
reflect such successor Person, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available
for delivery Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or
substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and
delivered in such new name.
Section 2.3 Registrar and Paying Agent. The Issuer shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may be presented for payment. The Registrar shall keep a register of the Notes and of their transfer and exchange
(the “Notes Register”). The Issuer may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying
agent and the term “Registrar” includes any co-registrar.
The Issuer shall
enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee in writing of
the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The
Issuer or any Guarantor may act as Paying Agent, Registrar or Transfer Agent.
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The Issuer initially appoints DTC to act as Depositary with respect to the Global Notes. The
Issuer initially appoints the Trustee as Registrar and Paying Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying
Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the
appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee.
Section 2.4 Paying Agent to Hold Money in Trust. By no later than 11:00 a.m. (New York City time) on the date on which any
principal of, premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or interest when due. The Issuer shall require
each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on
the Notes (whether such assets have been distributed to it by the Issuer or other obligors on the Notes), shall notify the Trustee in writing of any default by the Issuer or any Guarantor in making any such payment and shall during the continuance
of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Notes together with a full accounting thereof. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at
any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying
Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as
Paying Agent for the Notes.
Section 2.5 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 Holders. If the Trustee is not the Registrar, the Issuer, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to
the Trustee, in writing at least five (5) 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 Holders.
Section 2.6 Transfer and Exchange.
(a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein)
for another Note or Notes of any authorized denomination by presenting to the Registrar a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other
document required by this Section 2.6. The Registrar will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes Register
maintained by the Registrar for the purpose, and no transfer or exchange will be effective
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until it is registered in such Notes Register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this
Section 2.6 and Section 2.1(e) and 2.1(f), as applicable, and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and
Clearstream. The Registrar shall refuse to register any requested transfer or exchange that does not comply with this paragraph.
(b)
Transfers of Rule 144A Notes. The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note prior to the date that is one year after the later of the date of its original issue and the last
date on which the Issuer or any Affiliate of the Issuer was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”):
(1) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a
“qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that
Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC;
(2) [reserved]; and
(3) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a
Non-U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.9 from the proposed transferee and the
delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer.
(c) Transfers of Regulation S
Notes. The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(1) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the
transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a
“qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
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(2) [reserved]; and
(3) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.9 hereof from the proposed transferee and receipt by the Registrar or its agent of an Opinion
of Counsel, certification and/or other information satisfactory to the Issuer; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the
Regulation S Global Note to a transferee in the form of a beneficial interest in that Regulation S Global Note in accordance with this Indenture and the applicable procedures of DTC.
After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in accordance with applicable law without
requiring the certification set forth in Section 2.9 or any additional certification.
(d) Restricted Notes
Legend. Upon the transfer, exchange or replacement of Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a
Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (1) an Initial Note is being transferred pursuant to an effective registration statement, (2) Initial Notes are being exchanged for
Notes that do not bear the Restricted Notes Legend in accordance with Section 2.6(e) or (3) there is delivered to the Registrar and the Issuer an Opinion of Counsel reasonably satisfactory to the Issuer to the effect
that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted
Notes Legend.
(e) [Reserved].
(f) Retention of Written Communications. The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.1 or this Section 2.6. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications, at the Issuer’s
expense, at any reasonable time upon the giving of reasonable prior written notice to the Registrar.
(g) Obligations with Respect to
Transfers and Exchanges of Notes. To permit registrations of transfers and exchanges, the Issuer shall, subject to the other terms and conditions of this Article II, execute and the Trustee shall authenticate Definitive Notes and Global
Notes at the Issuer’s and the Registrar’s written request.
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No service charge shall be made to a Holder for any registration of transfer or exchange,
but the Issuer may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges
payable upon exchange or transfer pursuant to Sections 2.2, 2.6, 2.11, 2.13, 3.5, 5.6 or 9.5).
The Issuer (and the Registrar) shall not be required to register the transfer of or exchange of any Note (A) for a period beginning
(1) fifteen (15) calendar days before the mailing (or electronic delivery) of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing (or electronic delivery) or (2) fifteen (15)
calendar days before an interest payment date and ending on such interest payment date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem
and treat the person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the forms of Notes attached hereto as Exhibit A) interest
on such Note and for all other purposes whatsoever, including without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by
notice to the contrary.
Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to
Section 2.1(f) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in
Section 2.1(d)(1).
All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same
debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(h) No
Obligation of the Trustee. The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee
or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of
redemption or purchase) or the payment of any amount or delivery of any Notes (or other security or property) 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 in
respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC
subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
Neither the Registrar nor the Trustee shall have any 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 Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof. Neither the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by DTC.
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Section 2.7 [Reserved].
Section 2.8 [Reserved].
Section 2.9 Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S.
Accendra Health, Inc.
4435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Email: investor.relations@accendra.com
Regions Bank, as
Trustee
1180 West Peachtree Street, Suite 1200
Atlanta, GA
30309
Attention: Kristine Prall, VP, CCTS
Email:
Kristine.prall@regions.com
Re:
Accendra Health, Inc. (the “Issuer”)
9.000% Senior Secured First Lien Notes due 2032 (the “Notes”)
Ladies and Gentlemen:
In connection with our
proposed sale of $[ ] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S (“Regulation S”) under the United States Securities Act of 1933, as
amended (the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a
person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States
or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2)
of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act.
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In addition, if the sale is made during a restricted period and the provisions of Rule
903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
We also hereby certify that we [are][are not] an Affiliate of the Issuer and, to our knowledge, the transferee of the Notes [is][is not] an
Affiliate of the Issuer.
The Trustee and the Issuer are entitled to conclusively rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate and not otherwise defined herein have the meanings
set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
Section 2.10 [Reserved].
Section 2.11 Mutilated, Destroyed, Lost or Stolen Notes. If a mutilated Note is surrendered to the Registrar or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and upon receipt of a Issuer Order, the Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the UCC are met, such that the Holder (a) satisfies the Issuer and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Issuer and the Trustee prior to the Note being acquired by a protected
purchaser as defined in Section 8-303 of the UCC (a “protected purchaser”), (c) satisfies any other reasonable requirements of the Trustee and (d) provides an indemnity bond, as
more fully described below; provided, however, if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the
Trustee and/or the Issuer shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of the (i) Trustee to protect
the Trustee and (ii) the Issuer to protect the Issuer, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Issuer, any Guarantor or the Trustee
that such Note has been acquired by a protected purchaser, the Issuer shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under
this Section 2.11, the Issuer may require that such Holder pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses
of counsel and of the Trustee) in connection therewith.
Subject to the proviso in the initial paragraph of this
Section 2.11, every new Note issued pursuant to this Section 2.11, in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the
Issuer, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.11 are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.12 Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.11 and those described in this Section 2.12 as not outstanding. A Note does not cease to be outstanding in
the event the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that (i) for purposes of determining which are outstanding for consent or voting purposes hereunder, the provisions of
Section 13.4 shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of
Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes
which a Trust Officer of the Trustee actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered outstanding.
If a Note is replaced pursuant to Section 2.11 (other than a mutilated Note surrendered for replacement), it ceases
to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to
Section 2.11.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
Redemption Date or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent
is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
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Section 2.13 Temporary Notes. In the event that Definitive Notes are to be
issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights,
of Definitive 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. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Issuer for that purpose and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal
principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.
Section 2.14 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 Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and
dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Issuer or any Guarantor acquires any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.14. The Issuer may not
issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased
or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes,
transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
Section 2.15 Payment of Interest; Defaulted Interest. Interest on any Note which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the
Issuer maintained for such purpose pursuant to Section 2.3.
Any interest on any Note which is payable, but is
not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election, as provided in clause (a) or
(b) below:
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(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the “Special Interest Payment Date”), 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 in this Section 2.15(a). Thereupon the Issuer shall fix a record date (the
“Special Record Date”) for the payment of such Defaulted Interest, which date shall be not more than twenty (20) calendar days and not less than fifteen (15) calendar days prior to the Special Interest Payment Date and
not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Issuer,
the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.1, not less than
ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be
paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions
in Section 2.15(b).
(b) The Issuer may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment pursuant to
this Section 2.15(b), such manner of payment shall be deemed practicable by the Trustee.
Subject to the
foregoing provisions of this Section 2.15, 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 2.16 CUSIP and ISIN Numbers. The Issuer in issuing the Notes
may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption or purchase as a convenience to Holders; provided, however, the
Trustee shall have no liability for any defect in the CUSIP number as they appear on any Notes, notice or elsewhere and 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 a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omission of
such CUSIP and ISIN numbers. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
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ARTICLE III
COVENANTS
Section 3.1
Payment of Notes. The Issuer shall promptly pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest shall be
considered paid on the date due if by 11:00 a.m. New York City time on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or
the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture, the
Issuer may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.
Section 3.2 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired
Indebtedness); provided, however, that the Company and any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving pro forma effect thereto (including
pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries is no less than 2.00 to 1.00.
(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted
Debt”):
(1) (X) Indebtedness Incurred under any Credit Facility by the Company or any of its Restricted
Subsidiaries (including letters of credit or bankers’ acceptances issued or created under any Credit Facility) and Guarantees in respect of such Indebtedness, up to an aggregate principal amount equal to $511 million,
(Y) Indebtedness Incurred under the Revolving Credit Agreement (including letters of credit or bankers’ acceptances issued or created thereunder) by the Company or any of its Restricted Subsidiaries and Guarantees in respect of such
Indebtedness, up to an aggregate principal amount equal to $250 million; provided that in connection with or after the consummation of a Permitted Acquisition, the Company and its Restricted Subsidiaries may Incur up to an additional
$50 million in Indebtedness under the Revolving Credit Agreement (including letters of credit or bankers’ acceptances issued or created thereunder) if either (x) on the date of such Permitted Acquisition or (y) on the date of
such Incurrence and, in either case, after giving pro forma effect thereto (including pro forma application of the proceeds of any such Incurrence), (A) the Consolidated First Lien Secured Leverage Ratio for the Company and its Restricted
Subsidiaries is no higher than 3.25 to 1.00 and (B) the Consolidated Total Leverage Ratio
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of the Company and its Restricted Subsidiaries would not be higher than immediately prior to such Permitted Acquisition, and (Z) in the case of any refinancing of any Indebtedness permitted
under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation,
original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing, and any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or other obligations of the Company or any
Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the terms of this Indenture; provided that the Indebtedness incurred pursuant to this clause (2) may not be Incurred in
connection with any Liability Management Transaction;
(3) Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that if a Guarantor incurs such Indebtedness owing to a Non-Guarantor
Subsidiary, excluding any Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past practice (and not in connection with the borrowing of money),
such Indebtedness is expressly subordinated in right of payment (but only to the extent permitted by applicable law and to the extent such subordination does not result in material adverse tax consequences) to the Guarantee of the Notes of such
Guarantor; provided, further, that any subsequent issuance or transfer (other than the incurrence of a Permitted Lien) of any Capital Stock or any other event that results in any such Restricted Subsidiary to which such Indebtedness is owed ceasing
to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be
deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (3); provided that the Indebtedness incurred pursuant to this clause (3) may not be Incurred in connection with any Liability Management
Transaction;
(4) Indebtedness represented by (a) the Notes (other than any Additional Notes), including any Guarantee
thereof, (b) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (2), (3), (4)(a), 4(e) and (15) of this Section 3.2(b) but including the Existing Notes) outstanding on the Issue Date and
any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4), clause (5) or clause (11) of this
Section 3.2(b) or Incurred pursuant to Section 3.2(a), (d) Management Advances and (e) the Second Lien Notes (other than any Additional Notes (as defined in the Second Lien Notes Indenture)),
including any Guarantee thereof;
(5) so long as no Event of Default has occurred and is continuing, Indebtedness of
(x) the Company or any Restricted Subsidiary Incurred or issued to finance a Permitted Acquisition or similar Investment or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into, amalgamated or
consolidated with the Company or
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a Restricted Subsidiary in accordance with the terms of the Indenture (including designating an Unrestricted Subsidiary as a Restricted Subsidiary); provided that after giving pro forma
effect to such acquisition, merger, amalgamation or consolidation, either:
(i) the Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 3.2(a), or (ii) the Consolidated Total Leverage Ratio would have been no greater than 4:00 to 1:00;
(ii) either the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries would not be lower or the
Consolidated Total Leverage Ratio of the Company and the Restricted Subsidiaries would not be higher, in each case, than immediately prior to such acquisition, merger, amalgamation or consolidation; or
(iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction
or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be
those Persons who were obligors of such Indebtedness prior to such acquisition, merger, amalgamation or consolidation;
(6)
Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness
(i) represented by Finance Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then
outstanding, does not exceed the amount of Finance Lease Obligations and Purchase Money Obligations outstanding on the Issue Date plus the greater of (a) $35 million and (b) 10.0% of LTM EBITDA, and any Refinancing Indebtedness in respect
thereof and (ii) arising out of Sale and Leaseback Transactions in an aggregate outstanding principal amount, which when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (7)(ii) and then
outstanding, does not exceed the greater of (a) $35 million and (b) 10.0% of LTM EBITDA at the time of incurrence and any Refinancing Indebtedness in respect thereof; provided that the Indebtedness incurred pursuant to this clause
(7)(ii) may not be Incurred in connection with any Liability Management Transaction;
(8) Indebtedness in respect of
(a) workers’ compensation claims, health, disability or other employee benefits, property, casualty or liability insurance, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, bid, appeal, advance
payment (including progress premiums), customs, value added or other Tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating
to liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial
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institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness
is extinguished within five Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received in the ordinary course of business or consistent with past practice from customers for goods or services
purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bank guarantees, bankers’ acceptances, discounted bills of exchange, discounting or factoring of receivables or payables for credit
management purposes, warehouse receipts, guarantees or other similar instruments or obligations issued or entered into, or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice;
(e) Cash Management Obligations; and (f) Settlement Indebtedness;
(9) Indebtedness arising from agreements
providing for guarantees, indemnification, obligations in respect of earn-outs, deferred purchase price or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the
acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of
financing such acquisition or disposition); provided that the maximum liability of the Company and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds,
including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and its Restricted
Subsidiaries in connection with such disposition;
(10) unsecured Indebtedness in an aggregate outstanding principal amount
which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Company from the issuance or sale (other than to a
Restricted Subsidiary) of its Capital Stock or otherwise contributed to the equity (in each case, other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Company, in each case, subsequent
to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the
extent the Company and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the
extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(11) Indebtedness in the form of
additional Second Lien Notes, including the Guarantees thereof;
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(12) (a) Indebtedness issued by the Company or any of its Subsidiaries to
any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity, in
each case to finance the purchase or redemption of Capital Stock of the Company or any Parent Entity that is not prohibited by Section 3.3 and (b) Indebtedness consisting of obligations under deferred compensation or
any other similar arrangements incurred in the ordinary course of business, consistent with past practice, any Investment or any acquisition (by merger, consolidation, amalgamation or otherwise);
(13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (i) the financing of insurance
premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past
practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal
amount of all other Indebtedness Incurred pursuant to this clause (14) and then outstanding, will not exceed the greater of (a) $170 million and (b) 50.0% of LTM EBITDA, and any Refinancing Indebtedness in respect thereof; provided
that any Indebtedness Incurred pursuant to this clause (14) may only be secured by Liens on the Collateral that have Junior Lien Priority relative to the Notes and the Note Guarantees or be unsecured;
(15) Indebtedness in respect of any Qualified Securitization Financing or any Receivables Facility in an aggregate principal
amount not to exceed $200 million at any one time outstanding; provided that following the consummation of a Permitted Acquisition, the Company and its Restricted Subsidiaries may incur up to an additional $50 million pursuant to
this clause (15) with respect to any Securitization Assets or Receivables Assets acquired in such Permitted Acquisition;
(16) Indebtedness of the Company or any of its Restricted Subsidiaries arising pursuant to any Permitted Tax Restructuring, and
Permitted Intercompany Activities;
(17) [reserved];
(18) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a
Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such
credit;
(19) Indebtedness to a customer to finance the acquisition of any equipment necessary to perform services for such
customer; provided that the terms of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Issue Date, including that (i) the repayment of such Indebtedness is conditional upon such
customer ordering a specific volume of goods or services and (ii) such Indebtedness does not bear interest or provide for scheduled amortization or maturity;
(20) obligations in respect of Disqualified Stock in an amount not to exceed the greater of $35 million and 10.0% of LTM
EBITDA outstanding at any time;
(21) [reserved]; and
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(22) Indebtedness incurred by the Company or any of its Restricted
Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this
Indenture.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred
pursuant to and in compliance with, this Section 3.2:
(1) subject to clause (3) below, in
the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.2(a) and (b), the Company, in its sole discretion, will classify, and may
from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in Section 3.2(a) or one of the clauses of Section 3.2(b);
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to
any type of Indebtedness described in Section 3.2(a) or (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the time of
reclassification (it being understood that any Indebtedness incurred pursuant to one of the clauses of Section 3.2(b) shall cease to be deemed incurred or outstanding for purposes of such clause but shall be deemed incurred
for the purposes of the Section 3.2(a) from and after the first date on which the Company or its Restricted Subsidiaries could have incurred such Indebtedness under Section 3.2(a) without reliance
on such clause);
(3) all Indebtedness outstanding on the Issue Date under the Credit Agreements shall be deemed to have
been Incurred on the Issue Date under Section 3.2(b)(1) and shall not be permitted to be reclassified, and all Indebtedness outstanding on the Issue Date with respect to the Notes or the Second Lien Notes shall be deemed to
have been Incurred on the Issue Date under Section 3.2(b)(4) and shall not be permitted to be reclassified;
(4) in the case of any Refinancing Indebtedness, when measuring the outstanding amount of such Indebtedness, such amount shall
not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, dividends, premiums (including, without limitation, tender premiums), defeasance costs, fees and other costs and expenses (including, without limitation,
original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(5) Guarantees of, or
obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be
included;
(6) 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 Section 3.2(a) or any clause of Section 3.2(b) and the letters of credit, bankers’ acceptances or other
similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
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(7) the principal amount of any Disqualified Stock of the Company 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;
(8) Indebtedness permitted by this Section 3.2 need not be permitted solely
by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness;
(9) for all purposes under this Indenture, including for purposes of calculating the Fixed Charge Coverage Ratio, the
Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, in connection with the incurrence, issuance or assumption of any Indebtedness pursuant to Section 3.2(a) or
Section 3.2(b) or the incurrence or creation of any Lien pursuant to the definition of “Permitted Liens” or otherwise, the Company 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, the Consolidated First Lien Secured Leverage Ratio, the
Consolidated Total Leverage Ratio or other provision of this Indenture, as applicable, is complied with (or 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 3.2 or the definition of “Permitted Liens,” as applicable, whether or not the Fixed Charge Coverage
Ratio, the Consolidated First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, 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 complied with (or satisfied) for all purposes (including as to the absence of any continuing Default or Event of Default); provided that for purposes of subsequent calculations of the
Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, 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 Company revokes an election of a Reserved Indebtedness Amount;
(10) notwithstanding anything in this Section 3.2 to the contrary, in the case of any Indebtedness
incurred to refinance Indebtedness initially incurred in reliance on Section 3.2(b) measured by reference to a percentage of LTM EBITDA at the time of Incurrence, if such refinancing would cause the percentage of LTM EBITDA
restriction to be exceeded if calculated based on the percentage of LTM EBITDA on the date of such refinancing, such percentage of LTM EBITDA restriction shall not be deemed to be
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exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus accrued and unpaid interest, dividends,
premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) in connection with such refinancing; and
(11) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of
the liability in respect thereof determined on the basis of GAAP.
Notwithstanding anything to the contrary in this Indenture or the other
Note Documents, (a) the aggregate principal amount of all First Lien Obligations Incurred under Section 3.2(b)(1)(X), Section 3.2(b)(1)(Y) or Section 3.2(b)(4)(a)
shall not, at any one time outstanding, exceed $1,351 million plus, with respect to any Refinancing Indebtedness in respect thereof, any increase permitted under clause (3) of the definition thereof, (b) the aggregate principal
amount of all First Lien Obligations and Second Lien Obligations Incurred under Section 3.2(b)(1)(X), Section 3.2(b)(1)(Y), Section 3.2(b)(4)(a),
Section 3.2(b)(4)(e) or Section 3.2(b)(11) shall not, at any one time outstanding, exceed $2,053 million plus, with respect to any Refinancing Indebtedness, any increase permitted under clause
(3) of the definition thereof, and (c) the aggregate principal amount of all Indebtedness for borrowed money Incurred by Non-Guarantor Subsidiaries under Section 3.2(a),
Section 3.2(b)(1), Section 3.2(b)(5)(i), Section 3.2(b)(5)(ii), Section 3.2(b)(14) and Section 3.2(b)(20) shall not, at
any one time outstanding, exceed the greater of (x) $35 million and (y) 10.0% of LTM EBITDA, plus with respect to any Refinancing Indebtedness in respect thereof, any increase permitted under clause (3) of the definition thereof;
provided that the Indebtedness described in this clause (c) may not be Incurred in connection with any Liability Management Transaction.
Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the
payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a
change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.
If at
any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be
Incurred as of such date under this Section 3.2, the Company shall be in default of this Section 3.2).
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar
equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed, in the
case of revolving credit debt; provided, that if such Indebtedness is Incurred to refinance other Indebtedness 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
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restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being
refinanced plus (b) the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender premiums) defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or
similar fees) Incurred in connection with such refinancing.
Notwithstanding any other provision of this
Section 3.2, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of
fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency
exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such Refinancing.
For purposes of this Indenture, (1) unsecured Indebtedness shall not be treated as subordinated or junior to Secured Indebtedness merely
because it is unsecured and (2) senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is secured by different
collateral or because it is guaranteed by different obligors.
Section 3.3 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to:
(1) declare or pay any dividend or make any distribution on or in respect of the Company’s or any Restricted
Subsidiary’s Capital Stock (including, without limitation, any such payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except:
(i) dividends, payments or distributions payable in Capital Stock of the Company (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock of the Company; or
(ii) dividends, payments or distributions
payable to the Company or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Company or another Restricted Subsidiary on no more than a
pro rata basis);
(2) purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital
Stock of the Company or any Parent Entity held by Persons other than the Company or a Restricted Subsidiary;
(3) purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than (i) any such purchase, repurchase, redemption,
defeasance or other acquisition or retirement in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other
acquisition or retirement and (ii) any Indebtedness Incurred pursuant to Section 3.2(b)(3)); or
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(4) make any Restricted Investment;
(any such dividend, distribution, payment, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment referred to in
clauses (1) through (4) are referred to herein as a “Restricted Payment”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:
(i) an Event of Default shall have occurred and be continuing (or would immediately thereafter result therefrom);
(ii) other than in the case of (i) a Restricted Investment and (ii) amounts attributable to subclauses
(C) through (F) of clause (iii) below, the Company is not able to incur an additional $1.00 of Indebtedness pursuant to Section 3.2(a) immediately after giving effect, on a pro forma basis, to such Restricted
Payment; or
(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the
Issue Date (and not returned or rescinded) (including Permitted Payments made pursuant to Section 3.3(b)(1) (without duplication) and Section 3.3(b)(10), but excluding all other Restricted Payments made pursuant to
Section 3.3(b)) would exceed the sum (the “Available Amount”) of (without duplication):
(A) [reserved];
(B) 50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the fiscal quarter
in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company are available (which may, at the Company’s election, be
internal financial statements) (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit);
(C) 100% of the aggregate cash, and the fair market value of property or assets or marketable securities, received by the
Company from the issue or sale of its Capital Stock or as the result of a merger or consolidation with another Person subsequent to the Issue Date or otherwise contributed to the equity (other than through the issuance of Disqualified Stock or
Designated Preferred Stock) of the Company subsequent to the Issue Date (other than (x) Net Cash Proceeds or property or assets or marketable securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an
employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of its employees to the extent funded by the Company or any Restricted Subsidiary, (y) cash or property or assets or marketable
securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 3.3(b)(6) and (z) Excluded Contributions);
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(D) 100% of the aggregate cash, and the fair market value of property or
assets or marketable securities, received by the Company or any Restricted Subsidiary from the issuance or sale (other than to the Company or a Restricted Subsidiary of the Company or an employee stock ownership plan or trust established by the
Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) by the Company or any Restricted Subsidiary subsequent to the Issue Date of any Indebtedness, Disqualified
Stock or Designated Preferred Stock that has been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) plus, without duplication, the amount of any cash, and the fair market value
of property or assets or marketable securities, received by the Company or any Restricted Subsidiary upon such conversion or exchange;
(E) 100% of the aggregate amount received in cash and the fair market value, as determined in good faith by the Company, of
marketable securities or other property received by means of: (i) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of, or other returns on Investment from, Restricted Investments made by the Company or its
Restricted Subsidiaries and repurchases and redemptions of, or cash distributions or cash interest received in respect of, such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances, and releases
of guarantees, which constitute Restricted Investments by the Company or its Restricted Subsidiaries, in each case after the Issue Date; or (ii) the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted
Subsidiary or a dividend, payment or distribution from an Unrestricted Subsidiary (other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(16) and will increase the
amount available under the applicable clause of the definition of “Permitted Investment” or Section 3.3(b)(16) as the case may be) or a dividend from an Unrestricted Subsidiary after the Issue Date; and
(F) 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 Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary after the Issue Date, the fair
market value of the Investment in such Unrestricted Subsidiary (or the assets transferred), as determined in good faith by the Company at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such
merger, amalgamation or consolidation or
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transfer of assets (after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged, amalgamated or consolidated or Indebtedness associated
with the assets so transferred), other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(16) and will increase the amount available under the applicable clause of the
definition of “Permitted Investment” or Section 3.3(b)(16), as the case may be.
(b)
Section 3.3(a) will not prohibit any of the following (collectively, “Permitted Payments”):
(1) the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of
declaration such payment would have complied with the provisions of this Indenture or the redemption, repurchase or retirement of Indebtedness if, at the date of any redemption notice, such payment would have complied with the provisions of this
Indenture as if it were and is deemed at such time to be a Restricted Payment at the time of such notice;
(2) (a) any
prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of Capital Stock, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”) or Subordinated Indebtedness made
by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale
of, Capital Stock of the Company or any Parent Entity to the extent contributed to the Company (in each case, other than Disqualified Stock or Designated Preferred 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 Company or to an employee stock ownership plan or any trust established by the Company 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 Section 3.3(b)(13), 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 Capital Stock of a Parent Entity) 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;
(3) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement of
Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of, Indebtedness permitted to be Incurred pursuant to Section 3.2;
(4) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement of
Preferred Stock of, the Company or a Restricted Subsidiary made by exchange for, or out of the proceeds of, the substantially concurrent sale of Preferred Stock of the Company or a Restricted Subsidiary, as the case may be, that, in each case, is
permitted to be Incurred pursuant to Section 3.2;
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(5) any prepayment, purchase, repurchase, exchange, redemption, defeasance,
discharge or other acquisition or retirement of Subordinated Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary:
(i) from Net Available Cash, but only if the Company shall have first complied with Section 3.5 and
purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to prepaying, purchasing, repurchasing, redeeming, defeasing, discharging or otherwise acquiring or retiring such Subordinated Indebtedness,
Disqualified Stock or Preferred Stock; or
(ii) to the extent required by the agreement governing such Subordinated
Indebtedness, Disqualified Stock or Preferred Stock, following the occurrence of (i) a Change of Control (or other similar event described therein as a “change of control”) or (ii) an Asset Disposition (or other similar event
described therein as an “asset disposition” or “asset sale”), but only if the Company shall have first complied with Section 3.5 or Section 3.9, as applicable, and purchased
all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock;
or
(iii) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to provide all or any portion of
the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary or (B) otherwise in connection
with or contemplation of such acquisition);
(6) a Restricted Payment to pay for the prepayment, purchase, repurchase,
redemption, defeasance, discharge, retirement or other acquisition of Capital Stock of the Company or any Parent Entity held by any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their
respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee
benefit, or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement (including, for the avoidance of doubt, any
principal and interest payable on any Indebtedness issued by the Company or any Parent Entity in connection with such prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition), including any Capital Stock
rolled over, accelerated or paid out by or to any employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or
any Parent Entity in connection with any transaction; provided, however, that the aggregate Restricted Payments made under this clause do not exceed $10 million in any calendar year; provided, further, that such amount in
any calendar year may be increased by an amount not to exceed:
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(i) the cash proceeds from the sale of Capital Stock (other than
Disqualified Stock or Designated Preferred Stock) of the Company and, to the extent contributed to the capital of the Company (other than through the issuance of Disqualified Stock or Designated Preferred Stock or an Excluded Contribution), Capital
Stock of any Parent Entity, in each case to members of management, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity that occurred
after the Issue Date, to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of Section 3.3(a)(iii); plus
(ii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries (or any
Parent Entity to the extent contributed to the Company) after the Issue Date; less
(iii) the amount of any
Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this clause (6);
and provided,
further, that (i) cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled
Investment Affiliates or Immediate Family Members) of the Company or Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Capital Stock of the Company or any Parent Entity and (ii) the repurchase of Capital Stock
deemed to occur upon the exercise of options, warrants or similar instruments if such Capital Stock represents all or a portion of the exercise price thereof and payments, in lieu of the issuance of fractional shares of such Capital Stock 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 3.3 or any other provision
of this Indenture;
(7) the declaration and payment of dividends on Disqualified Stock or Preferred Stock of a Restricted
Subsidiary, Incurred in accordance with Section 3.2;
(8) payments made or expected to be made by
the Company or any Restricted Subsidiary in respect of withholding or similar Taxes payable in connection with the exercise or vesting of Capital Stock or any other equity award by any future, present or former employee, director, officer, manager,
contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Restricted Subsidiary or any Parent Entity and purchases, repurchases, redemptions, defeasances or other
acquisitions or retirements of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, warrants, equity-based awards or other rights in respect thereof if such Capital Stock represents a portion of the exercise
price thereof or payments in respect of withholding or similar Taxes payable upon exercise or vesting thereof;
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(9) dividends, loans, advances or distributions to any Parent Entity or
other payments by the Company or any Restricted Subsidiary in amounts equal to (without duplication):
(i) the amounts
required for any Parent Entity to pay any Parent Entity Expenses or to pay or distribute any Related Taxes;
(ii) amounts
constituting or to be used for purposes of making payments to the extent specified in Sections 3.8.(b)(2), (3) and (5); and
(iii) so long as no Event of Default has occurred and is continuing (or would result therefrom), up to the greater of
$10 million and 2.0% of LTM EBITDA per calendar year;
(10) (a) the declaration and payment of dividends on the common
stock or common equity interests of the Company or any Parent Entity (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of
any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock), in an amount in any fiscal year not to exceed 6% of Market
Capitalization; or (b) in lieu of all or a portion of the dividends permitted by clause (a), any prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of the Company’s Capital Stock (and any
equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such Parent
Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock) for aggregate consideration that, when taken together with dividends permitted by clause (a), does not exceed the amount contemplated by clause (a);
(11) payments by the Company, or loans, advances, dividends or distributions to any Parent Entity to make payments, to
holders of Capital Stock of the Company or any Parent Entity in lieu of the issuance of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the
purpose of evading any limitation of this Section 3.3 or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Company);
(12) Restricted Payments that are made in an amount not to exceed the amount of Excluded Contributions;
(13) (i) the declaration and payment of dividends on Designated Preferred Stock of the Company or any of its Restricted
Subsidiaries issued after the Issue Date; (ii) the declaration and payment of dividends to a Parent Entity in an amount sufficient to allow the Parent Entity to pay dividends to holders of its Designated Preferred Stock issued after the Issue
Date; and (iii) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock; provided, however, that, in the case of clauses (i) and(ii), the
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amount of all dividends declared or paid to a Person pursuant to such clauses shall not exceed the Net Cash Proceeds received by the Company or the aggregate amount contributed in cash to the
equity of the Company (other than through the issuance of Disqualified Stock or an Excluded Contribution of the Company), from the issuance or sale of such Designated Preferred Stock; provided further, in the case of clauses (i), (ii) and
(iii), that for the most recently ended four fiscal quarters for which consolidated financial statements are available (which may, at the Company’s election, be internal financial statements) immediately preceding the date of issuance of such
Designated Preferred Stock or declaration of such dividends on such Refunding Capital Stock, after giving effect to such payment on a pro forma basis the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the
test set forth in Section 3.2(a);
(14) any prepayment, purchase, repurchase, exchange,
redemption, defeasance, discharge, retirement or other acquisition of Existing Notes made (i) for cash (other than with the proceeds of an Equity Offering) at a purchase price not to exceed, (x) with respect to the 2029 Notes, 75.0% of the
principal amount thereof or (y) with respect to the 2030 Notes, 77.0% of the principal amount thereof, in each case plus accrued and unpaid interest, (ii) in exchange for Indebtedness Incurred pursuant to
Section 3.2(b)(11) at a purchase price not to exceed, (x) with respect to the 2029 Notes, 83.5% of the principal amount thereof or (y) with respect to the 2030 Notes, 84.5% of the principal amount thereof, in each
case plus accrued and unpaid interest (provided that, for the avoidance of doubt, any such accrued and unpaid interest may be paid in cash), or (iii) with the proceeds of an Equity Offering, for cash at a purchase price not to exceed the
principal amount thereof, plus accrued and unpaid interest;
(15) distributions or payments of Securitization Fees, sales
contributions and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified
Securitization Financing or Receivables Facility;
(16) so long as no Event of Default has occurred and is continuing (or
would result therefrom), (i) Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of $35 million and 10.0% of LTM EBITDA at such time, and (ii) any Restricted
Payments, so long as, immediately after giving pro forma effect to the payment of any such Restricted Payment and the Incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Leverage
Ratio shall be no greater than 2.50 to 1.00;
(17) mandatory redemptions of Disqualified Stock issued as a Restricted
Payment or as consideration for a Permitted Investment;
(18) any Restricted Payment made in connection with the
Transactions and any fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related thereto, including Transaction Expenses;
(19) [reserved];
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(20) payments or distributions to dissenting stockholders pursuant to
applicable law (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a merger,
amalgamation, consolidation or transfer of assets that complies with Section 4.1 hereof;
(21)
Restricted Payments to a Parent Entity to finance Investments that would otherwise be permitted to be made pursuant to this Section 3.3 if made by the Company; provided that (a) such Restricted Payment shall be
made substantially concurrently with the closing of such Investment, (b) such Parent Entity shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital
of the Company or one of its Restricted Subsidiaries or (2) the merger or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by
Section 4.1) to consummate such Investment, (c) such Parent Entity and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction
except to the extent the Company or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Indenture, (d) any property received by the Company shall not increase amounts available for Restricted
Payments pursuant to Section 3.3(a)(iii), except to the extent the fair market value at the time of such receipt of such property exceeds the Restricted Payments made pursuant to this clause and (e) such Investment
shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this Section 3.3 (other than pursuant to Section 3.3(b)(12) hereof) or pursuant to the
definition of “Permitted Investment” (other than pursuant to clause (12) thereof);
(22) Investments or
other Restricted Payments in an aggregate amount not to exceed an amount equal to Declined Excess Proceeds; and
(23) any
Restricted Payment made in connection with a Permitted Intercompany Activity or Permitted Tax Restructuring.
For purposes of determining
compliance with this Section 3.3, in the event that a Restricted Payment or Investment (or portion thereof) meets the criteria of more than one of the categories of Permitted Payments described in the clauses above, or is
permitted pursuant to Section 3.3(a) and/or one or more of the clauses contained in the definition of “Permitted Investment”, the Company will be entitled to divide or classify such Restricted Payment or
Investment (or portion thereof) on the date of its payment or later divide, classify or reclassify in whole or in part in its sole discretion (based on circumstances existing on the date of such division, classification or reclassification) such
Restricted Payment or Investment (or portion thereof) in any manner that complies with this Section 3.3, including as an Investment pursuant to one or more of the clauses contained in the definition of “Permitted
Investment.”
Notwithstanding anything to the contrary in this Indenture or the other Note Documents, the aggregate principal amount
of all Restricted Payments made by Note Parties to Non-Guarantor Subsidiaries and Investments by Note Parties in Non-Guarantor Subsidiaries under Section
3.3(b)(16)(i) and clause (22) in the definition of “Permitted Investment” shall not at any time exceed the greater of (x) $35 million and (y) 10.0% of LTM EBITDA.
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The amount of all Restricted Payments (other than cash) shall be the fair market value on
the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash
Restricted Payment shall be its face amount, and the fair market value of any non-cash Restricted Payment, property or assets other than cash shall be determined conclusively by the Company acting in good
faith.
In connection with any commitment, definitive agreement or similar event relating to an Investment, the Company or applicable
Restricted Subsidiary may designate such Investment as having occurred on the date of the commitment, definitive agreement or similar event relating thereto (such date, the “Election Date”) if, after giving pro forma effect to
such Investment and all related transactions in connection therewith and any related pro forma adjustments, the Company or any of its Restricted Subsidiaries would have been permitted to make such Investment on the relevant Election Date in
compliance with this Indenture, and any related subsequent actual making of such Investment will be deemed for all purposes under this Indenture to have been made on such Election Date, including for purposes of calculating any ratio, compliance
with any test, usage of any baskets hereunder (if applicable) and Consolidated EBITDA and for purposes of determining whether there exists any Default or Event of Default (and all such calculations on and after the Election Date until the
termination, expiration, passing, rescission, retraction or rescindment of such commitment, definitive agreement or similar event shall be made on a pro forma basis giving effect thereto and all related transactions in connection therewith).
If the Company or a Restricted Subsidiary makes a Restricted Payment which at the time of the making of such Restricted Payment would in the
good faith determination of the Company be permitted under the provisions of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to
the Company’s financial statements affecting Consolidated Net Income or Consolidated EBITDA of the Company for any period.
For the
avoidance of doubt, this Section 3.3 shall not restrict the making of any regularly scheduled interest payment, mandatory prepayment or “AHYDO catch-up payment” with
respect to any Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under this Indenture.
Section 3.4 Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or
make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
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(2) make any loans or advances to the Company or any Restricted Subsidiary;
or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary;
provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating
distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company
or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of
Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any
Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(2) any encumbrance or restriction pursuant to the Note Documents or the Second Lien Notes Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
(4) any encumbrance or restriction pursuant to an agreement or instrument of a Person or relating to any Capital Stock or
Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or was designated as a Restricted Subsidiary or on
which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration in, or to provide all or any portion of the
funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or otherwise combined with or into the Company or
any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another Person is the Successor Company, any Subsidiary
thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer of any
property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security
agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or
assets subject to such mortgages, pledges, charges or other security agreements; (iii) contained in any trading,
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netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company 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 Company or such Restricted Subsidiary that are 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 Company or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; or (iv) pursuant to customary provisions restricting
dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Finance Lease Obligations permitted under this
Indenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(7) any encumbrance or
restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets
that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases,
licenses, shareholder agreements, joint venture agreements, and other similar agreements, organizational documents and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order,
or required by any regulatory authority;
(10) any encumbrance or restriction on cash or other deposits or net worth
imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued
subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good
faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, shall only be
permitted if such Indebtedness is permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not
materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in
comparable
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financings (as determined in good faith by the Company) and where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that
such encumbrances or restrictions will not adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of
a default relating to such agreement or instrument;
(15) any encumbrance or restriction existing by reason of any lien
permitted under Section 3.6; or
(16) any encumbrance or restriction pursuant to an agreement or
instrument effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (15) of this paragraph or this clause (an “Initial Agreement”) or
contained in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (15) of this paragraph or this clause (16); provided, however, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to
which such refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
Section 3.5 Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or
by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as
determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a
Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) within 360 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available
Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash is applied:
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(i) to the extent the Company or any Restricted Subsidiary, as the case may
be, elects (or is required by the terms of any Indebtedness), (a) to reduce, prepay, repay or purchase First Lien Obligations (other than the Notes), including Indebtedness under the Credit Agreements (or any Refinancing Indebtedness in respect
thereof); provided that (i) any reduction in revolving commitments (whether or not coupled with a mandatory prepayment) shall be deemed a prepayment in a corresponding amount for purposes of this Section 3.5 and
(ii) the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions at a purchase price no
less than 100% of the principal amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased; provided further that, in connection with any prepayment, repayment or purchase of Indebtedness pursuant to
this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness; or (b) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer, and, no more than on a pro rata basis, make
payments with respect to other First Lien Obligations, as set forth below) to redeem Notes as provided under Section 5.7 (provided, further, that if any such offer to purchase any Notes is made, such amount will be deemed
repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Notes), or purchase Notes through open-market purchases or in privately negotiated transactions at a purchase price no less than 100% of the principal
amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased; and
(ii) to the extent the
Company or any Restricted Subsidiary elects, (a) to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the amount of Net Available Cash received by
the Company or another Restricted Subsidiary) or (b) to invest in any one or more businesses, properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset Disposition (provided that any such
business, properties and/or assets will be, or will be held by, one or more Restricted Subsidiaries), with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as
reasonably determined by the Company); provided, however, that such Additional Assets shall be pledged as Collateral (unless such Additional Assets are Excluded Property and are not pledged to secure any other First Lien Obligations) under
the Notes Collateral Documents and in accordance with this Indenture substantially simultaneously with such investment to the extent the assets or property disposed of constituted Collateral; provided further that a binding agreement shall be
treated as a permitted application of Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an
“Acceptable Commitment”); or
(iii) any combination of the foregoing.
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provided that (1) pending the final application of the amount of any such Net Available Cash
pursuant to this Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Net
Available Cash in any manner not prohibited by this Indenture and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given
Asset Disposition (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the
relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition.
If (a) there remains Net Available Cash in excess of $25 million at the expiration of the Proceeds Application Period with respect
to any Asset Disposition or series of related Asset Dispositions, or (b) the aggregate Net Available Cash in any fiscal year exceeds $50 million (the amount of any such excess in (a) or (b), the “Excess Proceeds”),
then subject to the limitations with respect to Foreign Dispositions set forth below, the Company shall, no later than ten business days after the expiration of the Proceeds Application Period, make an offer to purchase (an “Asset
Disposition Offer”) to all Holders and, if required by the terms of any First Lien Obligations, to all holders of such First Lien Obligations, to purchase or prepay an aggregate principal amount of Notes or First Lien Obligations (or
reduce the commitments in a corresponding amount), as applicable, on a pro rata basis, equal to the amount of such Excess Proceeds multiplied by the Excess Proceeds Percentage (as defined below) at an offer or prepayment price in cash in an amount
equal to 100% of the principal amount thereof (or in the event such other First Lien Obligations were issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such lesser price with
respect to First Lien Obligations, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture and the
agreement governing the First Lien Obligations, as applicable, with respect to the Notes, in minimum denominations of $1.00 and in integral multiples of $1.00 in excess thereof. Notices of an Asset Disposition Offer or an Advance Offer (as defined
below) shall be sent by first class mail or sent electronically at least 10 days but not more than 60 days before the proposed purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in accordance with the
applicable procedures of DTC, with a copy to the Trustee. Upon receipt of Net Available Cash from any Asset Disposition, the Company may satisfy the foregoing obligations with respect to such Asset Disposition by making an Asset Disposition Offer
during, but prior to the expiration of, the Proceeds Application Period (the “Advance Offer”) with respect to all, but not less than all, of the Excess Proceeds from such Asset Disposition allocable to the Notes (in proportion to
all First Lien Obligations then outstanding) multiplied by the Excess Proceeds Percentage (the “Advance Portion”) in advance of being required to do so by this Indenture. The “Excess Proceeds Percentage” at any
time shall be, if the Consolidated First Lien Secured Leverage Ratio on a pro forma basis is (x) greater than or equal to 3.00 to 1.00, 100% (y) less than 3.00 to 1.00 but greater than or equal to 2.50 to 1.00, 50%, or (z) less than 2.50
to 1.00, 0%.
To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if applicable, any other First Lien
Obligations validly tendered or otherwise surrendered in connection with an Asset Disposition Offer (including pursuant to a reduction in commitments)
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made with Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion) is less than the amount offered in an Asset Disposition Offer (or, in the case of an Advance Offer, the
Advance Portion), the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture (“Declined Excess Proceeds”). If the aggregate principal amount (or accreted value, as applicable) of
the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess
Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes
or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an Asset Disposition Offer, the amount of Net Available Cash and Excess Proceeds shall be reset at zero.
(b) Notwithstanding any other provisions of this Section 3.5,
(i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary or a Domestic
Foreign Holding Company (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous
organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, and such
amounts may be retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company so long, but only so long, as the applicable local law or regulation, applicable organizational documents or agreements or other impediments will not
permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary or Domestic Foreign Holding
Company to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law or regulation, applicable organizational documents or other
impediments to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required such repatriation of any of such affected Net Available Cash is permitted under the applicable
local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation
could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not such repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the extent that the Company has determined in good faith that repatriation of, or an obligation to repatriate, any of
or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary, or any of
their respective affiliates and/or direct or indirect equity owners would incur a Tax liability, including receipt
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of a Tax dividend, deemed dividend pursuant to Code Section 956 or a withholding Tax), the Net Available Cash so affected may be retained by the applicable Foreign Subsidiary or Domestic
Foreign Holding Company. For the avoidance of doubt, nothing in this covenant shall require the Company to cause any amounts to be repatriated to the United States (whether or not such amounts are used in or excluded from the determination of the
amount of any mandatory prepayments hereunder). 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.
(c) For the purposes of Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(1) the assumption by the transferee of Indebtedness or other liabilities, contingent or otherwise of the Company or a
Restricted Subsidiary (other than Indebtedness of the Company or a Guarantor which is expressly subordinated in right of payment to the Notes pursuant to a written agreement) and the release of the Company or such Restricted Subsidiary from all
liability on such Indebtedness or other liability in connection with such Asset Disposition;
(2) securities, notes or
other obligations received by the Company or any Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied
for cash and Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition;
(3) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition,
to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company (other than Indebtedness of the Company or a Guarantor which is
expressly subordinated in right of payment to the Notes pursuant to a written agreement) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Company or any Restricted
Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this Section 3.5 that
is at that time outstanding, not to exceed the greater of $35 million and 10.0% of LTM EBITDA (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).
(d) To the extent that the provisions of any securities laws, rules or
regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company shall not be deemed to have breached its obligations described in this Indenture by virtue
of compliance therewith.
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(e) The provisions of this Indenture relative to the Company’s obligation to make an
offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
Section 3.6 Limitation on Liens. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
create, Incur or suffer to exist any Lien that secures Obligations under any Indebtedness on any asset or property of the Company or any Restricted Subsidiary, unless such Lien is a Permitted 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 3.7 Additional Guarantees.
(a) Upon the formation or acquisition of any new direct or indirect Restricted Subsidiary (other than an Excluded Subsidiary) by any Note
Party, the designation in accordance with Section 3.20 of any existing direct or indirect Subsidiary as a Restricted Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary:
(1) the Company shall cause such Restricted Subsidiary to, within 60 days, execute and deliver a supplemental indenture
substantially in the form of Exhibit B to this Indenture providing for a Guarantee by such Restricted Subsidiary and joinders to the applicable Notes Collateral Documents or new Notes Collateral Documents, except that with respect to a guarantee of
Indebtedness of the Company or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Note 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 or such Guarantor’s Guarantee of the Notes; and
(2) such Restricted Subsidiary shall waive and will not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee until payment in full of Obligations under this
Indenture.
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(b) The Company may elect, in its sole discretion, to cause or allow, as the case may be,
any Subsidiary or any of its Parent Entities that is not otherwise required to be a Guarantor to become a Guarantor, in which case, such Subsidiary or Parent Entity shall not be required to comply with the
60-day period described in Section 3.7(a) and such Guarantee may be released at any time in the Company’s sole discretion so long as any Indebtedness of such Subsidiary then
outstanding could have been incurred by such Subsidiary (either (x) when so incurred or (y) at the time of the release of such Guarantee) assuming such Subsidiary were not a Guarantor at such time.
Section 3.8 Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to enter into or conduct any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate value in excess of the greater of $40 million and 10.0% of LTM EBITDA
unless:
(1) the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a
Person who is not such an Affiliate; and
(2) in the event such Affiliate Transaction involves an aggregate value in excess
of the greater of $75 million and 20.0% of LTM EBITDA, the terms of such transaction have been approved by a majority of the members of the Board of Directors.
Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if
such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.
(b) The provisions of
Section 3.8(a) above shall not apply to:
(1) any Restricted Payment or other transaction
permitted to be made or undertaken pursuant to Section 3.3 (including Permitted Payments) or any Permitted Investment;
(2) any issuance, transfer or sale of Capital Stock other than Disqualified Stock, options, other equity-related interests or
other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or
arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidiary or any Parent Entity, restricted stock plans, long-term
incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs
or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business or consistent with past practice;
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(3) any Management Advances and any waiver or transaction with respect
thereto;
(4) (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a
Restricted Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (b) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material
liabilities and no material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, amalgamation or consolidation is otherwise consummated in compliance with this Indenture;
(5) the payment of compensation, fees, costs and reimbursement of expenses to, and customary indemnities (including under
customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any
Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through any Controlled Investment Affiliate or Immediate Family Member of such directors, officers or employees);
(6) the entry into and performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of any
transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed or
refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not more disadvantageous to the Holders in any material respect in the reasonable determination of the Company when taken
as a whole as compared to the applicable agreement as in effect on the Issue Date;
(7) any transaction effected as part of
a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or purchasers
or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice, which are fair to the Company or the relevant Restricted Subsidiary, in the reasonable determination of the Board of Directors or the
senior management of the Company or the relevant Restricted Subsidiary, or are on terms, taken as a whole, that are not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated party;
(9) any transaction between or among the Company or any Restricted Subsidiary and any Person that is an Affiliate of the
Company or an Associate or similar entity solely because the Company or a Restricted Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise controls such
Affiliate, Associate or similar entity;
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(10) issuances, transfers or sales of Capital Stock (other than Disqualified
Stock or Designated Preferred Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in connection
therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(11) [reserved];
(12) [reserved];
(13) the Transactions and the payment of all fees, costs and expenses (including all legal, accounting and other professional
fees, costs and expenses) related to the Transactions, in each case as disclosed in the Exchange Offering Memorandum;
(14)
transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view or meets the requirements of Section 3.8(a)(1);
(15) the existence of,
or the performance by the Company or any Restricted Subsidiaries of its obligations under the terms of, any equityholders, investor rights or similar agreement (including any registration rights agreement or purchase agreements related thereto) to
which it is party as of the Issue Date and any similar agreement that it may enter into thereafter; provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under any
future amendment to the equityholders’ agreement or under any similar agreement entered into after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise,
when taken as a whole, more disadvantageous to the Holders in any material respect in the reasonable determination of the Company than those in effect on the Issue Date;
(16) any purchase by the Company’s Affiliates of Indebtedness or Disqualified Stock of the Company or any of their
Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; provided that such purchases by the Company’s Affiliates are on the same terms as such
purchases by such Persons who are not the Company’s Affiliates;
(17) (i) investments by Affiliates in securities or
loans of the Company or any of its Restricted Subsidiaries (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long
as the investment is being offered by the Company or such Restricted Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates
in respect of securities or loans of the Company or any of its Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Company and its Restricted Subsidiaries, in each case, in
accordance with the terms of such securities or loans;
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(18) payments by the Company (and any Parent Entity) and its Restricted
Subsidiaries pursuant to any tax sharing agreements or other equity agreements in respect of “Related Taxes” among the Company (and any such Parent Entity) and its Restricted Subsidiaries on customary terms to the extent
attributable to the ownership or operation of the Company and its Subsidiaries;
(19) payments, Indebtedness and
Disqualified Stock (and cancellation of any thereof) of the Company 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 or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, 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; and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any
supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved
by the Board of Directors of the Company in good faith;
(20) any management equity plan, stock option plan, phantom equity
plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement between the
Company or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable
determination of the Company;
(21) any transition services arrangement, supply arrangement or similar arrangement entered
into in connection with or in contemplation of the disposition of assets or equity interests in any Restricted Subsidiary permitted under Section 3.5 or entered into with any Business Successor, in each case, that the
Company determines in good faith is either fair to the Company or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(22) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary as described in Section 3.20 and pledges of Capital Stock of Unrestricted Subsidiaries;
(23) (i) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company,
as lessor and (ii) any operational services or other arrangement entered into between the Company or any Restricted Subsidiary and any Affiliate of the Company, in each case, which is approved as being on arm’s length terms by the
reasonable determination of the Company;
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(24) intellectual property licenses and research and development agreements
in the ordinary course of business or consistent with past practice;
(25) payments to or from, and transactions with, any
Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements or activities related thereto);
(26) the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant
to equityholders, investor rights, registration rights or similar agreements;
(27) transactions undertaken in the ordinary
course of business pursuant to membership in a purchasing consortium; and
(28) Permitted Intercompany Activities and
Permitted Tax Restructurings or Intercompany License Agreements.
In addition, if the Company 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 Company 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 Company 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 Company 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 Company or a
Restricted Subsidiary to be deemed an Affiliate Transaction).
Section 3.9 Change of Control.
(a) If a Change of Control occurs, unless a third party makes a Change of Control Offer or the Company has previously or substantially
concurrently therewith delivered a redemption notice with respect to all of the outstanding Notes as set forth under Section 5.7(a), Section 5.7(c) or Section 5.7(e), the
Company will make an offer (the “Change of Control Offer”) to purchase all of the Notes 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 repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date. Within 30 days following any
Change of Control, the Issuer will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of
Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes
properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
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(2) 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 delivered (the “Change of Control Payment Date”);
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) 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 will cease to accrue interest, on the Change of Control Payment Date;
(5) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable
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, or otherwise comply with DTC procedures;
(6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such
Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter 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 and its election to have such Notes purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will 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 $1.00 or any integral multiple of $1.00 in excess of $1.00;
(8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer is
conditional on the occurrence of such Change of Control; and
(9) the other instructions, as determined by the Issuer,
consistent with this Section 3.9, that a Holder must follow.
The applicable Paying Agent will promptly deliver
to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount of $1.00 or in integral multiples of $1.00 in excess thereof. The Issuer will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after
an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record
date.
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(b) On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control
Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect
of all Notes or portions thereof so tendered, and
(3) 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.
(c) The Issuer will not be required to make a Change of Control Offer following a Change of Control if (x) 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 withdrawn under
such Change of Control Offer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default in the payment of the redemption price on the
applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(d) Notwithstanding anything to the contrary in this Section 3.9, a Change of Control Offer may be made in advance
of a Change of Control, conditional upon such Change of Control.
(e) [Reserved]
(f) 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 through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Issuer shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. 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.
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Section 3.10 Reports.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or
otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue Date, the Company shall furnish to the Trustee:
(1) within 120 days after the end of each fiscal year (or such longer period permitted pursuant to rules and regulations
promulgated by the SEC if the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act) ending after the Issue Date (or if such day is not a Business Day, on the next succeeding Business Day), all financial
information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(2) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or such longer period
permitted pursuant to rules and regulations promulgated by the SEC if the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act) ending after the Issue Date (or if such day is not a Business Day, on the
next succeeding Business Day), all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC, including
“Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and financial statements prepared in accordance with GAAP; and
(3) promptly after the occurrence of any of the following events, all current reports that would be required to be filed with
the SEC on Form 8-K or any successor or comparable form (if the Company had been a reporting company under Section 13 or 15(d) of the Exchange Act); provided, that the foregoing shall not obligate
the Company to make available (i) any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Company determines in its good faith judgment that such
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 Company and its Restricted Subsidiaries taken as a whole, (ii) a
summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries), (iii)
copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K or (iv) any trade secrets, privileged or confidential
information obtained from another Person and competitively sensitive information:
(A) the entry into or termination of
material agreements;
(B) significant acquisitions or dispositions (which shall only be with respect to acquisitions or
dispositions that are significant pursuant to the definition of “Significant Subsidiary”);
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(C) bankruptcy or insolvency;
(D) cross-default under direct material financial obligations;
(E) a change in the Company’s certifying independent auditor;
(F) the appointment or departure of directors or executive officers (with respect to the principal executive officer,
president, principal financial officer, principal accounting officer and principal operating officer only);
(G) non-reliance on previously issued financial statements; and
(H) change of control
transactions,
in each case, in a manner that complies in all material respects with the requirements specified in such form, except as described above or
below and subject to exceptions consistent with the presentation of information in the Exchange Offering Memorandum; provided, however, that the Company shall not be required to provide (i) any information that is not otherwise
similar to information included in the Exchange Offering Memorandum, (ii) separate financial statements or other information contemplated by Rule 3-05, 3-09, Rule 3-10, 13-01, 13-02 or Rule 3-16 or 4-08 of Regulation S-X, or in each case any successor provisions or any schedules required by Regulation S-X, (iii) information required by Regulation G under the Exchange Act or Item 10,
Item 302, Item 402 or Item 601 of Regulation S-K (or any successor provision), (iv) XBRL exhibits, (v) earnings per share information, (vi) information regarding executive compensation and related
party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A, (vii) climate-related disclosures related to
SEC Release Nos. 33-11275 and 34-99678, including, without limitation, any information, reports or exhibits required by Article 14 of Regulation S-X or Item 1506 of Regulation S-K and (viii) other information customarily excluded from an offering memorandum, including any information that is not otherwise of the
type and form included in the Exchange Offering Memorandum relating to the Notes. In addition, notwithstanding the foregoing, the Company will not be required to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as
amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K (or any successor provision). To the extent any such information is not so filed
or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Company 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; provided that such cure shall not otherwise affect the rights of the Holders under Section 6.1 hereof if Holders of at least 30% in aggregate principal
amount of the then total outstanding Notes have declared the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately and such declaration shall not have been
rescinded or cancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company shall agree that, for so long as any Notes are outstanding, it shall furnish to Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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(b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and
such Unrestricted Subsidiaries hold in the aggregate more than 5.0% of the Total Assets of the Company, then the annual and quarterly financial information required by Section 3.10(a)(1) and (2) will include a
reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial
condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.
(c) Substantially concurrently with the furnishing of such information to the Trustee pursuant to Section 3.10(a), the Company shall also
use its commercially reasonable efforts to post copies of such information required by Section 3.10(a) and (b) on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to the
Holders, beneficial owners of the Notes, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable satisfaction of the Company), and securities analysts and market making financial
institutions that are, in the case of securities analysts and market making financial institutions, reasonably satisfactory to the Company. To the extent the Company determines in good faith that it cannot make such reports available in the manner
described in the preceding sentence after the use of its commercially reasonable efforts, the Company shall furnish such reports to the Holders of the Notes and beneficial owners of the Notes, upon their request. The Company may condition the
delivery of any such reports to such Holders, beneficial owners, prospective investors in the Notes and securities analysts and market making financial institutions on the agreement of such Persons to (i) treat all such reports (and the
information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly
disclose any such reports (and the information contained therein) and information.
(d) The Company may satisfy its obligations pursuant
to this Section 3.10 with respect to financial information relating to the Company by furnishing financial information relating to a Parent Entity; provided that the same is accompanied by consolidating information
that explains in reasonable detail the differences between the information relating to such Parent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its
Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(e) Notwithstanding anything to the contrary set forth in this Section 3.10, if the Company or any Parent Entity of
the Company has furnished to the Holders of Notes or filed with the SEC the reports described in this Section 3.10 within the time period specified with respect to the Company or any Parent Entity of the Company, the
Company shall be deemed to be in compliance with the provisions of this Section 3.10.
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(f) The Trustee shall have no duty to review or analyze any reports furnished to it.
Delivery of reports, information and documents to the Trustee under this Indenture is for informational purposes only and the information 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall not be
obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants in this Indenture or with respect to any reports or other documents filed with the SEC or EDGAR or any website, or participate in
any conference calls.
Section 3.11 [Reserved].
Section 3.12 Maintenance of Office or Agency. The Issuer shall maintain an office or agency where the Notes may be presented or
surrendered for payment, where, if applicable, the Notes may be surrendered for registration of transfer or exchange. The Corporate Trust Office of the Trustee shall be such office or agency of the Issuer, unless the Issuer shall designate and
maintain some other office or agency for one or more of such purposes. The Issuer shall give prompt written notice to the Trustee of any change in the location of any 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 and surrenders may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to
receive all such presentations and surrenders; provided that the Trustee shall not be deemed an agent of the Issuer for service of legal process.
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 any such designation. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency. No
office of the Trustee shall be an office or agency of the Issuer for the purposes of service of legal process on the Issuer or any Guarantor.
Section 3.13 [Reserved].
Section 3.14 [Reserved].
Section 3.15 [Reserved].
Section 3.16 Compliance Certificate. The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of
the Issuer an Officer’s Certificate, the signer of which shall be the principal executive officer, principal financial officer, principal accounting officer, principal legal officer, secretary or treasurer of the Issuer, stating that in the
course of the performance by the signer of his or her duties as an Officer of the Issuer he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred
during the previous fiscal year; provided that no such Officer’s Certificate shall be required for any fiscal year ended prior to the Issue Date. If such Officer does have such knowledge, the certificate shall describe the Default or
Event of Default, its status and the action the Issuer is taking or proposes to take with respect thereto.
Section 3.17 Further
Instruments and Acts. Upon request of the Trustee or as necessary to comply with future developments or requirements, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
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Section 3.18 Limitations on Dispositions of Material Collateral. The
Company may not designate a Restricted Subsidiary as an Unrestricted Subsidiary unless such Restricted Subsidiary does not have legal or beneficial ownership of, or an exclusive license to, any Collateral (other than cash and Cash Equivalents) that
is material to the business of the Company and its Restricted Subsidiaries, taken as a whole, and neither the Company nor any Restricted Subsidiary shall be permitted to transfer to any Unrestricted Subsidiary or
Non-Guarantor Subsidiary legal or beneficial ownership of, or an exclusive license to, any Collateral (other than cash and Cash Equivalents) that is material to the business of the Company and its Restricted
Subsidiaries, taken as a whole; provided, that the foregoing shall not be deemed or interpreted to restrict (i) any exclusive Intellectual Property licenses granted to a such Restricted Subsidiary for a legitimate business purpose that
is only exclusive with respect to a particular type or field (or types or fields) of usage or a certain territory or group of territories, in each case that does not effectively result in the transfer of beneficial ownership of such Intellectual
Property or (ii) any non-exclusive license.
Section 3.19 Statement by Officers as to
Default. The Issuer shall deliver to the Trustee, as soon as possible and in any event within 30 days after the Issuer becomes aware of the occurrence of any Default or Event of Default, an Officer’s Certificate setting forth the details
of such Event of Default or Default, its status and the actions which the Issuer is taking or proposes to take with respect thereto.
Section 3.20 Designation of Restricted and Unrestricted Subsidiaries. The Company may not designate any Restricted Subsidiary to
be an Unrestricted Subsidiary, and may not otherwise permit any Subsidiary of the Company (including any Subsidiary existing on the Issue Date) to be an Unrestricted Subsidiary, in each case, without the prior written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted
Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under
Section 3.3 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions. 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 Company as
of such date and, if such Indebtedness is not permitted to be incurred as of such date by Section 3.2 hereof, the Company will be in default of such covenant.
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The Company may at any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will
only be permitted if (1) such Indebtedness is permitted under Section 3.2 hereof (including pursuant to Section 3.2(b)(5) treating such redesignation as an acquisition for the purpose of such clause),
calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the
Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.
Section 3.21 Suspension of Certain Covenants on Achievement of Investment Grade Status. Beginning on the first day (a) the
Notes have achieved Investment Grade Status and (b) no Default or Event of Default has occurred and is continuing under this Indenture, and ending on a Reversion Date (such period a “Suspension Period”), the Company and its
Restricted Subsidiaries will not be subject to Sections 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 3.18, 3.22 and 4.1(a)(3) (the “Suspended Covenants”).
If at any time the Notes cease to have such Investment Grade Status, then the Suspended Covenants shall thereafter be reinstated as if such
covenants had never been suspended (the “Reversion Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of
this Indenture), unless and until the Notes subsequently attain Investment Grade Status and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an
Investment Grade Status); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the
Company 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 prior to the Reversion Date that
were permitted at such time, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period.
On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date, so
that it is classified as permitted under Section 3.2(b)(1). Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under
Section 3.3. The Company may not designate any Restricted Subsidiary as an Unrestricted Subsidiary during the Suspension Period. On the Reversion Date, the amount of Excess Proceeds shall be reset at zero. Any Affiliate
Transaction entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under
Section 3.8(b)(6). Any encumbrance or restriction on the ability of any Restricted Subsidiary to take any action described in Section 3.4(a)(1), (2) and (3) that becomes effective during the
Suspension Period will be deemed to have existed on the Issue Date, so that it is classified as permitted under Section 3.4(b)(1). In addition, any future obligation to grant further Note Guarantees shall be released. All
such further obligations to grant Guarantees shall be reinstated on the Reversion Date. As described above, however, no Default, Event of Default or breach of any kind shall be deemed to have occurred as a result of the Reversion Date occurring on
the basis of any actions taken or the continuance of any circumstances resulting from actions taken or the performance of obligations under agreements entered into by the Company or any of the Restricted Subsidiaries during the Suspension Period
(other than agreements to take actions after the Reversion Date that would not be permitted outside of the Suspension Period entered into in contemplation of the Reversion Date).
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On and after each Reversion Date, the Company and its Subsidiaries will be permitted to
consummate the transactions contemplated by any contract entered into during the Suspension Period, so long as such contract and such consummation would have been permitted during such Suspension Period.
The Company shall notify the Trustee of the commencement or cessation of any Suspension Period within thirty (30) days of the applicable
commencement or cessation of any Suspension Period; provided that the failure by the Company to so notify the Trustee shall not constitute a Default or Event of Default under this Indenture. The Trustee shall have no duty to monitor the ratings of
the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify Holders if the Notes achieve Investment Grade Status or of the occurrence of a Reversion Date or to independently determine if such
events have occurred.
Section 3.22 Liability Management Transactions. The Issuer shall not, and shall not permit any of the
Restricted Subsidiaries or Unrestricted Subsidiaries, to consummate a Liability Management Transaction.
Section 3.23
After-Acquired Collateral.
From and after the Issue Date, and subject to the terms of this Indenture and the Notes
Collateral Documents, if the Company or any Guarantor acquires any property or rights which are of a type constituting Collateral under any Notes Collateral Document (excluding, for the avoidance of doubt, any Excluded Property or assets not
required to be Collateral pursuant to this Indenture or the Notes Collateral Documents), it will be required to execute and deliver such security instruments, financing statements and such certificates as are required under this Indenture or any
Notes Collateral Document to vest in the Notes Collateral Agent a first-priority perfected security interest (subject to Permitted Liens and the terms of any Intercreditor Agreement) in such after-acquired collateral and to take such actions to add
such after-acquired collateral to the Collateral, and thereupon all provisions of this Indenture and the Notes Collateral Documents relating to the Collateral shall be deemed to relate to such after-acquired collateral to the same extent and with
the same force and effect. For the avoidance of doubt, Opinions of Counsel will not be required in connection with the addition of new Guarantors or in connection with the Company or such Guarantors entering into the Notes Collateral Documents or to
vest in the Notes Collateral Agent a perfected security interest in after-acquired collateral owned by the Company or such Guarantors (in each case, unless such opinions are delivered to any other Collateral Agent pursuant to corresponding
provisions of a Credit Agreement).
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Section 3.24 Further Assurances.
On or following the Issue Date, and subject to the terms of this Indenture, the Notes Collateral Documents and the applicable Intercreditor
Agreements, the Company and the Guarantors shall execute any and all further documents, financing statements (including continuation statements and amendments to financing statements), agreements, instruments, notices and acknowledgments and take
all further action that may be required under applicable law, or that the Notes Collateral Agent may reasonably request, in order to grant, preserve, maintain, protect and perfect (or continue the perfection of) the validity and priority (subject to
Permitted Liens and the terms of the applicable Intercreditor Agreements) of the security interests created or intended to be created by the applicable Notes Collateral Documents, all at the expense of the Company. In addition, subject to the terms
of the applicable Intercreditor Agreements, from time to time, the Company and each Guarantor will reasonably promptly secure the Obligations under the Note Documents by pledging or creating, or causing to be pledged or created, perfected security
interests with respect to the Collateral. Such security interests and Liens will be created under the Notes Collateral Documents.
ARTICLE
IV
SUCCESSOR COMPANY; SUCCESSOR PERSON
Section 4.1 Merger, Amalgamation and Consolidation.
(a) The Company shall not consolidate with or merge or amalgamate with or into or convey, transfer or lease all or substantially all its
assets, in one transaction or a series of related transactions, to any Person, unless:
(1) the Company is the surviving
Person or the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia,
and the Successor Company (if not the Company) will expressly assume, by supplemental indenture and joinders to the applicable Notes Collateral Documents or new Notes Collateral Documents, executed and delivered to the Trustee and the Notes
Collateral Agent, as applicable, all the obligations of the Company under the Notes and this Indenture and the applicable Notes Collateral Documents and if such Successor Company is not a corporation, a
co-obligor of the Notes is a corporation organized or existing under such laws;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the
applicable Successor Company or any Subsidiary of the applicable Successor Company as a result of such transaction as having been Incurred by the applicable Successor Company or such Subsidiary at the time of such transaction), no Event of Default
shall have occurred and be continuing;
(3) upon execution of an agreement to enter into such transaction, no Event of
Default shall have occurred and be continuing, and, immediately after giving pro forma effect to such transaction, either (a) the Company or the applicable Successor Company (if not the Company) would be able to Incur at least an additional
$1.00 of Indebtedness pursuant to Section 3.2(a) hereof, or (b) the Fixed Charge Coverage Ratio of the Company or the Successor Company, as the case may be, and the Restricted Subsidiaries would not be lower than it
was immediately prior to giving effect to such transaction or (c) the Consolidated Total Leverage Ratio of the Company or the Successor Company, as the case may be, and its Restricted Subsidiaries would not be higher than it was immediately
prior to giving effect to such transaction;
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(4) the Company shall have delivered to the Trustee and the Notes Collateral
Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indenture and joinders to the applicable Notes Collateral Documents or new Notes Collateral
Documents (if any) comply with this Indenture and an Opinion of Counsel stating that such supplemental indenture and joinders to the applicable Notes Collateral Documents or new Notes Collateral Documents (if any) have been duly authorized, executed
and delivered and are a legal, valid and binding agreement enforceable against the Successor Company; provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to
satisfaction of clauses (2) and (3) above; and
(5) to the extent any assets of the Person which is merged or
consolidated with or into the Company are assets of the type which would constitute Collateral under the Notes Collateral Documents, the Company or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary
to cause such property and assets to be made subject to the Lien of the applicable Notes Collateral Document in the manner and to the extent required in this Indenture or the applicable Notes Collateral Document and shall take all reasonably
necessary action so that such Lien is perfected to the extent required by the applicable Notes Collateral Documents.
(b) [Reserved].
(c) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Note
Documents, and the Company will automatically and unconditionally be released and discharged from its obligations under the Note Documents (except in the case of a lease).
(d) Notwithstanding any other provisions of this Section 4.1, (i) the Company may consolidate or otherwise combine
with, merge into or transfer all or part of its properties and assets to a Guarantor, (ii) the Company may consolidate or otherwise combine with or merge into an Affiliate that is (x) organized or existing under the laws of the
jurisdiction of the Company or the United States of America, any State of the United States or the District of Columbia or (y) incorporated or organized for the purpose of changing the legal domicile of the Company, reincorporating the Company
in another jurisdiction, or changing the legal form of the Company, (iii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Company or a Guarantor,
(iv) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary and (v) the Company and its Restricted Subsidiaries may complete
any Permitted Tax Restructuring.
(e) The foregoing provisions (other than the requirements of clause (a)(2)) shall not apply to the
creation of a new Subsidiary as a Restricted Subsidiary.
(f) Subject to Section 10.2(b), no Guarantor may:
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(1) consolidate with or merge or amalgamate with or into any Person;
(2) sell, convey, transfer or dispose of all or substantially all its assets, in one transaction or a series of related
transactions, to any Person; or
(3) permit any Person to merge or amalgamate with or into such Guarantor, unless:
(A) the other Person is the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with
the transaction; or
(B) (i) either (x) the Company or a Guarantor is the continuing Person or (y) the
resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Note Guarantee, the Indenture and the applicable Notes Collateral Documents; and (ii) immediately after giving effect to the
transaction, no Event of Default has occurred and is continuing; or
(C) the transaction constitutes a sale or other
disposition or transfer (including by way of consolidation, merger or amalgamation) of the Guarantor or the conveyance, transfer, lease, sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the
Company or a Restricted Subsidiary) otherwise not prohibited by this Indenture.
Notwithstanding any other provision of this
Section 4.1, any Guarantor may (a) consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to another Guarantor or the Company, (b) consolidate or otherwise combine
with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor, reincorporating the Guarantor in another jurisdiction, or changing the legal form of the Guarantor, (c) convert into a
corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, (d) liquidate or dissolve or change its legal form if the Company
determines in good faith that such action is in the best interests of the Company and (e) complete any Permitted Tax Restructuring. Notwithstanding anything to the contrary in this Section 4.1, the Company may
contribute Capital Stock of any or all of its Subsidiaries to any Guarantor.
Any reference herein to a merger, consolidation,
amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability
company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate
Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person hereunder (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, Restricted
Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
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ARTICLE V
REDEMPTION OF SECURITIES
Section 5.1 Notices to Trustee. If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of
Section 5.7 hereof, it must furnish to the Trustee, at least 15 days (or such shorter period as the Trustee may agree) but not more than 60 days before a Redemption Date, an Officer’s Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Any optional redemption referenced in such Officer’s Certificate may be cancelled by the Issuer at any time prior to notice of
redemption being sent to any Holder and thereafter shall be null and void.
Section 5.2 Selection of Notes to Be Redeemed or
Purchased. If less than all of the Notes are to be redeemed pursuant to Section 5.7 or purchased in an Asset Disposition Offer pursuant to Section 3.5, the Trustee will select Notes for
redemption or purchase in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Trustee by the Company, if the Notes are in global form, on a pro rata basis, by lot, or by
such other method in accordance with the applicable procedures of DTC or if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC or DTC prescribes no method of selection, the Trustee
will select by lot, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption.
No
Notes in an unauthorized denomination or of $1.00 in aggregate principal amount or less shall be redeemed in part. In the event of partial redemption, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 10 days nor more than 60 days prior to the Redemption Date or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase; provided that the Issuer shall provide the Trustee
with sufficient notice of such partial redemption to enable the Trustee to select the Notes for partial redemption.
The Trustee will
promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes
selected will be in minimum principal amounts of $1.00 or in integral multiples of $1.00 in excess thereof. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply
to portions of Notes called for redemption or purchase.
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Section 5.3 Notice of Redemption. At least 10 days but not more than 60 days
before the Redemption Date, the Issuer will send or cause to be sent, by electronic delivery or by first class mail postage prepaid, a notice of redemption to each Holder (with a copy to the Trustee) whose Notes are to be redeemed at the address of
such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, 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 a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles VIII or XI hereto.
The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the
Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which
the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuer’s request, the Trustee will give
the notice of redemption in the Issuer’s name and at its expense; provided, however, that the Issuer has delivered to the Trustee, at least three (3) Business Days (or if any of the Notes to be redeemed are in definitive
form, five (5) Business Days) prior to the date on which the Issuer instructs the Trustee to give the notice (or such shorter period as the Trustee may agree), 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.
Notice of any redemption of the Notes
may, at the Issuer’s discretion, be given prior to the completion of a corporate transaction (including but not limited to an Equity Offering, an incurrence of Indebtedness, a Change of Control or other corporate transaction) and any
redemption notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a related transaction. If such redemption or purchase
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is so subject to satisfaction of one or more conditions precedent such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the
Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, 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 by the Redemption Date, or by the Redemption Date as so delayed. In addition, the Issuer may provide in such notice
that payment of the redemption price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.
Section 5.4 [Reserved].
Section 5.5 Deposit of Redemption or Purchase Price. Prior to 11:00 a.m. New York City Time on the Redemption Date or purchase
date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent
will promptly return, on or following the applicable redemption or repurchase date, 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 or purchase price of,
and accrued interest, if any, on all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding
paragraph, on and after the Redemption Date or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a record date but on or prior to the
related interest payment date, then any accrued and unpaid interest up to, but excluding, the Redemption Date or purchase date shall be paid on the Redemption Date or purchase date to the Person in whose name such Note was registered at the close of
business on such record date in accordance with the applicable procedures of DTC. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase 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 or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 3.1 hereof.
Section 5.6 Notes Redeemed or Purchased in Part.
Upon surrender of a Note issued in physical form that is redeemed or purchased in part, the Issuer will issue and the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or
unpurchased portion of the Note surrendered; provided, that each such new Note will be in a minimum principal amount of $1.00 or in integral multiples of $1.00 in excess thereof.
In the case of a Note issued as a global note, an appropriate notation will be made on such Note to decrease the principal amount thereof to
an amount equal to the unredeemed portion thereof; provided, that the unredeemed portion thereof will be in a minimum principal amount of $1.00 or in integral multiples of $1.00 in excess thereof.
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Section 5.7 Optional Redemption.
(a) At any time prior to June 15, 2029, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor
more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as a percentage of the principal amount of the Notes to be
redeemed) equal to 100.000% plus the relevant Applicable Premium as of, and accrued and unpaid interest, if any, to but excluding, the date of redemption (the “Redemption Date”), subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date.
(b) At any time and from time to time prior to June 15,
2029, the Company may, on one or more occasions, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40.0%
of the aggregate principal amount of Notes issued under this Indenture (together with Additional Notes) at a redemption price (expressed as a percentage of the principal amount of Notes to be redeemed) equal to 109.000%, plus accrued and unpaid
interest, if any, to but excluding, the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date, with the Net Cash Proceeds received
by the Company of one or more Equity Offerings of the Company; provided that not less than 40.0% of the original aggregate principal amount of the then-outstanding Notes issued under this Indenture remains outstanding immediately after the
occurrence of each such redemption (excluding Notes held by the Company or any of its Restricted Subsidiaries), unless all such Notes are redeemed substantially concurrently; provided further that each such redemption occurs not later than
180 days after the date of closing of the related Equity Offering. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6.
(c) Further, prior to June 15, 2029, the Company may, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the
Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem the Notes issued under this Indenture (including any Additional Notes) upon the consummation of a Change of Control at a redemption price equal to
103.000% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
(d)
Except pursuant to clauses (a), (b) and (c) of this Section 5.7, the Notes will not be redeemable at the Company’s option prior to June 15, 2029.
(e) At any time and from time to time on or after June 15, 2029, the Company may redeem the Notes, in whole or in part, upon not less
than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register at the redemption prices (expressed as percentages of principal amount of the Notes
to be redeemed) set forth in the table below, plus accrued and unpaid interest thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest
due on the relevant interest payment date, if redeemed during the twelve-month period beginning on June 15 of each of the years indicated in the table below:
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Year
Percentage
2029
104.500
%
2030
102.250
%
2031 and thereafter
100.000
%
(f) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of
Control Offer or Asset Disposition Offer, if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making
such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party shall have the right upon not less than 10 nor more than 60 days’ prior notice,
with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, given not more than 30 days following such purchase date to redeem all Notes that remain outstanding following such purchase at a
redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to but
not including, the date of such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the outstanding Notes have validly tendered and not validly withdrawn such Notes in a tender offer, including a
Change of Control Offer or Asset Disposition Offer, Notes owned by the Company or its Affiliates or by funds controlled or managed by any Affiliate of the Company, or any successor thereof, shall be deemed to be outstanding for the purposes of such
tender offer.
(g) Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or
portions thereof called for redemption on the applicable Redemption Date.
(h) Any redemption pursuant to this
Section 5.7 shall be made pursuant to the provisions of Sections 5.1 through 5.6.
Section 5.8 Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes; provided, however, that under certain circumstances, the Company may be required to offer to purchase Notes under Section 3.5 and Section 3.9. The Company, the Company’s
equity holders, their respective Affiliates and members of management, among other parties, may at any time and from time to time purchase, repurchase, redeem, exchange, defease or otherwise acquire or retire the Company’s or any of its
Subsidiaries’ outstanding debt securities or loans, including the Notes, by any means other than a redemption that is subject to the provisions in Section 5.7 (and, for the avoidance of doubt, without being subject to
the pro rata requirement in Section 5.2), upon such terms, at such prices and with such considerations as the Company, the Company’s equity holders, their respective Affiliates and members of management, among other
parties, may determine, including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions with one or more Holders and/or beneficial owners of Notes.
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
(1) default in any payment of interest on any Note when due and payable, continued for 30 days;
(2) default in the payment of the principal amount of or premium, if any, on any Note issued under this Indenture when due at
its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;
(3) failure by the
Company or any Guarantor to comply for 60 days after written notice by the Trustee on behalf of the Holders or by the Holders of at least 30% in aggregate principal amount of the outstanding Notes with any agreement or obligation contained in this
Indenture; provided that in the case of a failure to comply with this Indenture provisions described under Section 3.10, such period of continuance of such default or breach shall be 180 days after written notice
described in this clause (3) has been given;
(4) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated
financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary) (or the payment of which is Guaranteed by the Company or any Significant Subsidiary (or group of Restricted Subsidiaries that, taken
together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary)) other than Indebtedness owed to the Company or a Restricted Subsidiary whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:
(A) is caused by a failure to
pay principal of such Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods provided in such Indebtedness); or
(B) results in the acceleration of such Indebtedness prior to its stated final maturity;
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which
there has been a payment default of principal at its stated final maturity (after giving effect to any applicable grace periods) or the maturity of which has been so accelerated, aggregates to $100.0 million or more at any one time outstanding;
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(5) failure by the Company or any Significant Subsidiary (or group of
Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary), to pay final judgments aggregating in excess of
$100.0 million other than any judgments covered by indemnities provided by, or insurance policies issued by, reputable and creditworthy 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;
(6) (A) any Note Guarantee by a Significant Subsidiary ceases to be in full force and effect, other than (1) in accordance
with the terms of this Indenture; or (2) in connection with the bankruptcy of a Guarantor, so long as the aggregate assets of such Guarantor and any other Guarantor whose Note Guarantee ceased or ceases to be in full force as a result of a
bankruptcy are less than $100.0 million, or (B) a Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under its Guarantee of the Notes, other than in accordance with the terms thereof or upon release of such
Note Guarantee in accordance with this Indenture;
(7) the Company or a Significant Subsidiary (or any group of Restricted
Subsidiaries, that taken together as of the latest audited consolidated financial statements of the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary) pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; or
(F) takes any comparable action under any foreign laws relating to insolvency;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or a Significant Subsidiary (or any group of Restricted Subsidiaries, that taken
together as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary) in an involuntary case;
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(B) appoints a Custodian of the Company or a Significant Subsidiary (or any
group of Restricted Subsidiaries, that taken together as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary) for substantially all of its property;
(C) orders the winding up or liquidation of the Company or a Significant Subsidiary (or any group of Restricted Subsidiaries,
that taken together as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary); or
(D) or any similar relief is granted under any foreign laws and the order, decree or relief remains unstayed and in effect for
60 consecutive days;
(9) (i) the Liens created by the Notes Collateral Documents shall at any time not constitute a valid
and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Notes Collateral Documents) other than (A) in accordance with the terms of the relevant
Notes Collateral Document and this Indenture, (B) the satisfaction in full of all Notes Obligations or (C) any loss of perfection that results from the failure of the Notes Collateral Agent (or its bailee pursuant to the terms of any
applicable intercreditor agreement to which the Notes Collateral Agent is a party) to maintain possession of certificates delivered to it representing securities pledged under the Notes Security Documents and (ii) such default continues for 30
days after receipt of written notice given by the Trustee or the Holders of not less than 30% in aggregate principal amount of the then outstanding Notes; or
(10) the Company or any Guarantor that is a Significant Subsidiary (or any group of Guarantors that together, as of the latest
consolidated financial statements of the Company for a fiscal quarter end provided as required under Section 3.10, would constitute a Significant Subsidiary) shall assert, in any pleading in any court of competent
jurisdiction, that any security interest in any Notes Collateral Document is invalid or unenforceable (other than by reason of the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, the release of the Note
Guarantee of such Guarantor in accordance with the terms of this Indenture or the release of such security interest in accordance with the terms of this Indenture and the Notes Collateral Documents);
provided that a Default under clause (3), (4), (5) or (9) above will not constitute an Event of Default until the Trustee or the Holders of at
least 30% in principal amount of the outstanding Notes notify the Company of the Default (with a copy to the Trustee and the Notes Collateral Agent, as applicable, if notice is given by the Holders) and, with respect to clauses (3), (5) or
(9) above, the Company does not cure such Default within the time specified in clauses (3), (5) or (9) above after receipt of such notice; provided, further, that a notice of Default may not be given with respect to any action
taken, and reported publicly or to Holders, more than two years prior to such notice of Default. Any notice of Default, notice of acceleration or instruction to the Trustee and the Notes
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Collateral Agent, as applicable, to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders
(each a “Directing Holder”) must be accompanied by a written representation from each such Holder delivered to the Company, the Trustee and the Notes Collateral Agent, as applicable, that such Holder is not (or, in the case such
Holder is DTC or its 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 the
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 Company with such other information as the Company may reasonably request from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five
Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial
owner of the Notes in lieu of DTC or its nominee and DTC shall be entitled to conclusively rely on such Position Representation and Verification Covenant in delivering any direction to the Trustee and the Notes Collateral Agent, as applicable.
If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company 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 provides to the Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that the
Company has initiated litigation (“Litigation”) in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any
Default, Event of Default or acceleration (or notice thereof) 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 Default or
Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter (a “Final
Decision”). Once such Officer’s Certificate has been provided to the Trustee, the Trustee shall take no further action pursuant to the related Noteholder Direction until it has actual knowledge of a Final Decision. If, following the
delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company provides to the Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that a Directing Holder failed to satisfy its
Verification Covenant (a “Verification Covenant Officer’s Certificate”), the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Default or Event of Default that
resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant, and the Trustee shall take no further action pursuant to the related Noteholder Direction
until the Company provides a subsequent Officer’s Certificate to the Trustee that such Verification Covenant has been satisfied (a “Covenant Satisfaction Officer’s Certificate”). The Company shall promptly deliver a
Covenant Satisfaction Officer’s Certificate following satisfaction by the applicable Directing Holder of its Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder
Direction being disregarded; and, if, without the participation of such 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, with the effect that such Default or Event of Default shall be deemed never to have occurred, acceleration voided and neither the Trustee nor the Notes Collateral Agent, as applicable, shall be
deemed to have received such Noteholder Direction or any notice of such Default or Event of Default.
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(b) Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder
Direction delivered to the Trustee and the Notes Collateral Agent, as applicable, during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the foregoing paragraphs. For the
avoidance of doubt, the Trustee and the Notes Collateral Agent, as applicable, shall be entitled to conclusively rely on any Noteholder Direction 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 Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise and shall have no liability for ceasing to take any action, staying any remedy or otherwise failing to act in accordance with
a Noteholder Direction during the pendency of Litigation or a Noteholder Direction after a Verification Covenant Officer’s Certificate has been provided to it prior to the receipt of a Covenant Satisfaction Officer’s Certificate. Nether
the Trustee nor the Notes Collateral Agent, as applicable, shall have any liability or responsibility to the Company, any Holder or any other Person in connection with any Noteholder Direction or to determine whether or not any Holder has delivered
a Position Representation or that such Position Representation conforms with this Indenture or any other Agreement.
(c) If a Default for a
failure to report or failure to deliver a required certificate in connection with another default (the “Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to
deliver a required certificate in connection with another default that resulted solely because of that Initial Default shall also be cured without any further action.
(d) Any Default or Event of Default for the failure to comply with the time periods prescribed in Section 3.10 hereof
or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by such provision or such notice or certificate, as applicable, even though
such delivery is not within the prescribed period specified in this Indenture. Any time period in this Indenture to cure any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction to the extent
such actual or alleged Default or Event of Default is the subject of litigation.
Section 6.2 Acceleration. If any Event of
Default (other than an Event of Default described in clause (7) or (8) of Section 6.1(a)) occurs and is continuing, the Trustee by written notice to the Company or the Holders of at least 30% in principal amount of the
outstanding Notes by written notice to the Company and the Trustee may declare the principal of and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest,
will be due and payable immediately.
In the event of any Event of Default specified in clause (4) of
Section 6.1(a), such Event of Default and all consequences thereof shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default
arose:
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(1) (x) the Indebtedness that gave rise to such Event of Default shall have
been discharged in full; or (y) the holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (z) if the default that is the basis for such Event of Default
has been cured; and
(2) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a
court of competent jurisdiction.
If an Event of Default described in clause (7) or (8) of Section 6.1(a)
occurs and is continuing, the principal of and accrued and unpaid interest, if any, on all of the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
Section 6.3 Other Remedies. If an Event of Default occurs and is continuing, subject to the terms of the applicable Intercreditor
Agreements, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any, or interest, if any, 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 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.4 Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their consent (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), an existing Default or Event of Default and its consequences under this Indenture except (i) a Default or Event of Default in the payment of the principal of, or interest, on a Note or
(ii) a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind any acceleration with respect to the Notes and its
consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any,
interest, if any, that has become due solely because of the acceleration, (3) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (4) the Issuer has paid the Trustee its compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances and (5) in the event of the cure or waiver of an Event of
Default of the type described in clause (4) of Section 6.1(a), the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived. No
such rescission shall affect any subsequent Default or impair any right consequent thereto. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
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Section 6.5 Control by Majority. The Holders of a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the
Notes Collateral Agent. However, the Trustee and the Notes Collateral Agent, as applicable, may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trustee
determines is unduly prejudicial to the rights of other Holders or would involve the Trustee or the Notes Collateral Agent in personal liability (it being understood that the Trustee has no duty to determine if any directed action is prejudicial to
any Holder); provided, however, that the Trustee or the Notes Collateral Agent, as applicable, may take any other action deemed proper by the Trustee or the Notes Collateral Agent, as applicable, that is not inconsistent with such direction. Prior
to taking any such action hereunder, each of the Trustee and the Notes Collateral Agent shall be entitled to indemnification satisfactory to it against all fees, losses, liabilities and expenses (including attorney’s fees and expenses) caused
by taking or not taking such action.
Section 6.6 Limitation on Suits. Subject to Section 6.7, a Holder may not pursue
any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written
notice that an Event of Default is continuing;
(2) Holders of at least 30% in aggregate principal amount of the
outstanding Notes have requested in writing the Trustee to pursue the remedy;
(3) such Holders have offered in writing
and, if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt of the written request and the offer of
security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the outstanding Notes have not given
the Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it
being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the contractual right of any Holder to receive payment of interest on the Notes held by such Holder or to institute suit for the enforcement of any such payment on or with respect to such
Holder’s Notes shall not be impaired or affected without the consent of such Holder (and, for the avoidance of doubt, the amendment,
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supplement or modification in accordance with the terms of this Indenture of Articles III and IV and Section 6.1(a)(3), (4), (5) and
(6) and the related definitions shall be deemed not to impair the contractual right of any Holder to receive payments of principal of and interest on such Holder’s Notes on or after the due dates therefor or to institute suit for
the enforcement of any such payment on or with respect to such Holder’s Note).
Section 6.8 Collection Suit by Trustee.
If an Event of Default specified in clauses (1) or (2) of Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole
amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.7.
Section 6.9 Trustee May File Proofs of Claim. The Trustee may 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 and the Notes Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of each of the Trustee and the Notes Collateral Agent and
their respective agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer, its Subsidiaries or its or their respective creditors or properties and, unless prohibited by law or applicable regulations, may be
entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 it for the compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their respective agents and counsel, and any other amounts due to the Trustee and the Notes Collateral Agent under
Section 7.7.
No provision of this Indenture 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, liquidation, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10 Priorities.
(a) Subject to the Intercreditor Agreements, if the Trustee collects any money or property pursuant to this Article VI, it shall pay out
the money or property in the following order:
FIRST: to the Trustee and the Notes Collateral Agent, in each case, for amounts due to it
under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or 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 of, or premium, if any, and interest, respectively; and
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THIRD: to the Issuer, or to the extent the Trustee collects any amount for any Guarantor, to
such Guarantor.
(b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10. At least 15 days before such record date, the Issuer shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.11 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 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 6.11 does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 20.0% in outstanding aggregate principal amount of the Notes.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, and is actually known or notified in writing to a Trust Officer, the Trustee shall
exercise 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 same circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad
faith or willful misconduct 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, opinions or orders furnished to the Trustee and conforming to the
requirements of this Indenture or the Notes, as the case may be. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the requirements of this Indenture or the Notes, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.1(b);
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(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) 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 6.5; and
(4) no provision of this Indenture or the Notes shall require the Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject
to this Section 7.1 and Section 7.2.
(e) 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.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
Section 7.2 Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
judgment, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document (whether in its original or facsimile form) reasonably 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. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such
reports or statements to determine compliance with covenants or other obligations of the Issuer.
(b) Before the Trustee acts or refrains
from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts and powers hereunder or perform any duties hereunder either directly or by or through its
attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care by it hereunder.
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(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with
counsel of its selection, and the advice or opinion of counsel relating to this Indenture or the Notes shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder or
under the Notes in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be deemed to have
notice of any Default or Event of Default or whether any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such
a Default or of any such Significant Subsidiary is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. Nothing herein shall require the Trustee to provide a notice to the
Company in accordance with Section 6.1(3), (4), (5) or (9) of this Indenture (or analogous provision set forth in the terms of any Notes) absent a direction from Holders of a majority in principal
amount of the Notes then outstanding (subject to the Trustee’s rights to be indemnified hereunder).
(g) 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 to each agent, including
without limitation, the Notes Collateral Agent, and each custodian and other Person employed to act hereunder; provided that only the Trustee acting in its capacity as Trustee and not any other capacity shall be subject to any prudent person
standard.
(h) Neither the Trustee nor the Notes Collateral Agent shall be under any obligation to exercise any of the rights or powers
vested in it by this Indenture or the Notes at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered and, if requested, provided to the Trustee and the Notes
Collateral Agent, as applicable, security or indemnity satisfactory to the Trustee and the Notes Collateral Agent, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby.
(i) Neither the Trustee nor the Notes Collateral Agent shall be deemed to have knowledge of any fact or matter unless such fact or matter is
actually known to a Trust Officer of the Trustee or the Notes Collateral Agent, as applicable.
(j) Whenever in the administration of this
Indenture or the Notes the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of negligence or willful misconduct on its part, request and conclusively rely upon an Officer’s Certificate.
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(k) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or 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, during business hours and upon reasonable notice, the books, records and premises of
the Issuer and the 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.
(l) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(m) 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 or the Notes, 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.
(n) In no event shall the Trustee be liable to any Person for
special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(o) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if
signed by one Officer of the Issuer.
(p) In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or
confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other
communications or information on behalf of the party purporting to send such electronic transmission and may conclusively rely on, and comply with, such instructions, directions, reports, notices or other communications or other information
reasonably believed by it to be genuine and to have been sent by the proper Person; and the Trustee shall not, in the absence of negligence or willful misconduct on its part, have any liability for any losses, liabilities, costs or expenses incurred
or sustained by any party as a result of such reliance in good faith upon, or compliance in good faith with, such instructions, directions, reports, notices or other communications or information. Each party agrees to assume all risks arising out of
the use of electronic methods by such party to submit instructions, directions, reports, notices or other communications or information to the Trustee by such party, including without limitation the risk of the Trustee acting on unauthorized
instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(q) The
permissive rights of the Trustee enumerated herein shall not be construed as duties and, with respect to such permissive rights, the Trustee shall not be answerable for other than its gross negligence or willful misconduct.
(r) The Trustee is not responsible for monitoring the performance of other persons or for the failure of others to perform their duties.
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(s) Any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this
Indenture upon the request or authority or consent of any person in accordance with this Indenture who, at the time of making such request or giving such authority or consent, is the holder of any Note shall, to the extent provided in this
Indenture, be conclusive and binding upon future holders of Notes, and upon Notes executed and delivered in exchange therefor or in place thereof.
(t) Notwithstanding anything to the contrary set forth herein, in no event shall the Trustee or the Paying Agent be liable for interest on any
money received by it (including, but not limited to, any negative interest) except as the Trustee or the Paying Agent may otherwise agree in writing with the Company.
Section 7.3 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, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Section 7.10. In addition, the Trustee shall be permitted to engage in transactions with the Issuer
and its Affiliates and Subsidiaries.
Section 7.4 Trustee’s Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of the Note Documents, shall not be accountable for the Issuer’s use of the proceeds from the sale of the Notes, shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee or any money paid to the Issuer pursuant to the terms of this Indenture and shall not be responsible for any statement of the Issuer in the Note Documents or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5
Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall send electronically or by first class mail to each Holder at the address set forth in the
Notes Register notice of the Default or Event of Default within 60 days after it is actually known to a Trust Officer. Except in the case of a Default or Event of Default in payment of principal of or interest, if any, on any Note (including
payments pursuant to the optional redemption or required repurchase provisions of such Note), the Trustee may withhold the notice if and so long it in good faith determines that withholding the notice is in the interests of Holders.
Section 7.6 Monies to Be Held in Trust. All monies received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
Section 7.7 Compensation and Indemnity. The Issuer and the Guarantors, jointly and severally, shall pay to the Trustee and the
Notes Collateral Agent from time to time compensation for its services hereunder and under the Notes as the Issuer and the Trustee and the Notes Collateral Agent shall from time to time agree in writing. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer and the Guarantors, jointly and severally, shall reimburse each of the Trustee and the Notes Collateral Agent upon request for
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all reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection,
costs of preparing reports, certificates and other documents, costs of preparation and mailing of notices to Holders. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the agents, counsel,
accountants and experts of the Trustee and the Notes Collateral Agent. The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee, the Notes Collateral Agent, their respective directors, officers, employees and agents and hold
each of them harmless against any and all loss, liability, damages, claims or expense, including taxes (other than taxes based upon the income of the Trustee or the Notes Collateral Agent) (including reasonable attorneys’ and agents’
fees and expenses) incurred by it without willful misconduct or gross negligence, as determined by a final non-appealable order of a court of competent jurisdiction, on its part in connection with the
administration of this trust and the performance of its duties or exercise of its rights hereunder and under the Notes and other Note Documents, including the costs and expenses of enforcing this Indenture (including this
Section 7.7) and the Notes and the other Note Documents and of defending itself against any claims (whether asserted by any Holder, the Issuer or otherwise). The Trustee and the Notes Collateral Agent, as applicable, shall
notify the Issuer promptly of any claim for which it may seek indemnity of which it has received written notice. Failure by the Trustee or the Notes Collateral Agent, as applicable, to so notify the Issuer shall not relieve the Issuer of its
obligations hereunder. The Issuer shall defend the claim and the Trustee and the Notes Collateral Agent, as applicable, shall provide reasonable cooperation at the Issuer’s expense in the defense. The Trustee and the Notes Collateral Agent may
have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided that the Issuer shall not be required to pay the fees and expenses of such separate counsel if it assumes the Trustee’s and the Notes
Collateral Agent’s defense, and, in the reasonable judgment of outside counsel to the Trustee or the Notes Collateral Agent, as applicable, there is no conflict of interest between the Issuer and the Trustee and the Notes Collateral Agent in
connection with such defense; provided further that, the Company shall be required to pay the reasonable fees and expenses of such counsel in evaluating such conflict.
To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the
Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. The
Trustee’s respective right to receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or Indebtedness of the Issuer.
The Issuer’s payment obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture,
payment of the Notes and any resignation or removal of the Trustee under Section 7.8 or the Notes Collateral Agent under Section 12.7. Without prejudice to any other rights available to the Trustee
and the Notes Collateral Agent under applicable law, when the Trustee or the Notes Collateral Agent incurs fees, expenses or renders services after the occurrence of a Default specified in clause (7) or clause (8) of
Section 6.1(a), the fees and expenses (including the reasonable fees and expenses of its counsel) are intended to constitute administrative expenses for purposes of priority under any Bankruptcy Law.
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Section 7.8 Replacement of Trustee. The Trustee may resign at any time by so
notifying the Issuer in writing not less than 30 days prior to the effective date of such resignation. The Holders of a majority in aggregate principal amount of the Notes may remove the Trustee by so notifying the removed Trustee in writing not
less than 30 days prior to the effective date of such removal and may appoint a successor Trustee with the Issuer’s written consent, which consent will not be unreasonably withheld. The Issuer shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer
shall promptly appoint 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
mail a notice of its succession to Holders. The retiring Trustee shall, at the expense of the Issuer, promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee or the Holders of at least 10.0% in aggregate principal amount of the Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder, who has been a bona fide holder of a Note for at least
six months, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under
Section 7.7 shall continue for the benefit of the retiring Trustee with respect to expense and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers, and duties under this
Indenture prior to such replacement. The predecessor Trustee shall have no liability for any action or inaction of any successor Trustee.
Section 7.9 Successor Trustee or Notes Collateral Agent by Merger. If the Trustee or the Notes Collateral Agent, as applicable,
consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall
be the successor Trustee or successor Notes Collateral Agent, as applicable.
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In case at the time such successor or successors by merger, conversion or consolidation to
the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and
deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or successors by merger,
consolidation or conversion.
Section 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee. The
Trustee shall have a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.
Section 7.11 Notes Collateral Documents. By their acceptance of the Notes, each Holder is deemed to accept the terms of, agrees to
be bound by and authorize and direct each of the Trustee and the Notes Collateral Agent, as applicable, to enter into and perform its respective obligations under, the Notes Collateral Documents.
By their acceptance of the Notes, the Holders and the other Notes Secured Parties authorize and instruct the Trustee and the Notes Collateral
Agent, as applicable, to, without any further consent of any Holder or any other First Lien Secured Parties, (a) join or enter into (or acknowledge and consent to) the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement
or any other intercreditor agreement (which shall also include any replacement intercreditor agreement thereof entered into in accordance with the terms hereof) that provides the Notes Obligations with pari passu or senior Lien and/or payment
priority, in each case, that is permitted or not prohibited under this Indenture (including with respect to priority) and to subject the Liens on the Collateral securing the Notes Obligations to the provisions thereof (each, an “Other
Intercreditor Agreement”) and (b) enter into any amendments, restatements, amendments and restatements, supplements, or other modifications, in order to provide for the incurrence of any First Lien Obligations, Junior Lien Obligations
or Second Lien Obligations, which shall be in a form that the Company has determined in good faith is reasonably customary for intercreditor agreements governing the relationship between senior and junior priority. By their acceptance of the Notes,
the Holders and the other Notes Secured Parties irrevocably agree that (x) the Trustee and the Notes Collateral Agent may rely exclusively on an Officer’s Certificate as to whether any such intercreditor agreement that provides the Notes
Obligations with pari passu or senior Lien and/or payment priority is permitted under this Indenture and the other Note Documents and (y) any Intercreditor Agreement entered into by the Trustee and the Notes Collateral Agent, as applicable,
shall be binding on the Notes Secured Parties, and each Holder and each other Notes Secured Parties by their acceptance of the Notes agrees that it will take no actions contrary to the provisions of the First Lien Intercreditor Agreement and, if
entered into and if applicable, any Other Intercreditor Agreement.
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It is hereby expressly acknowledged and agreed that, in entering into any Notes Collateral
Document, the Trustee and the Notes Collateral Agent are (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the
validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Notes Collateral Documents, the Trustee and the Notes
Collateral Agent each shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
Section 7.12 Trustee’s Application for Instruction from the Issuer. Any application by the Trustee for written
instructions from the Issuer may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three
(3) Business Days after the date any Officer of the Issuer actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
ARTICLE VIII
LEGAL DEFEASANCE AND
COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance. The Issuer may, at its
option and at any time, elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.
Section 8.2 Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 hereof of
the option applicable to this Section 8.2, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) and have Liens, if any, on the Collateral securing the Notes released, on the date the conditions set forth below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note
Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all of their other obligations under the Note Documents (and the Trustee, on written demand of and at the expense of the Issuer, shall execute such instruments reasonably requested by the Issuer acknowledging the same) and to have cured
all then existing Events of Default, except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of Notes issued under this Indenture to receive payments in respect of the principal of, premium, if
any, and interest, if any, on the Notes when such payments are due solely out of the trust referred to in Section 8.4 hereof;
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(2) the Issuer’s obligations with respect to the Notes under
Article II concerning issuing temporary Notes, registration of such Notes, mutilated, destroyed, lost or stolen Notes and Section 3.12 hereof concerning the maintenance of an office or agency for payment and money for security payments
held in trust;
(3) the rights, powers, trusts, duties, indemnities and immunities of the Trustee and Notes Collateral
Agent and the Issuer’s or Guarantors’ obligations in connection therewith; and
(4) this Article VIII
with respect to provisions relating to Legal Defeasance.
Section 8.3 Covenant Defeasance. Upon the Issuer’s exercise
under Section 8.1 hereof of the option applicable to this Section 8.3, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in
Section 8.4 hereof, be released from each of their obligations under the covenants contained in Section 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9,
3.10, 3.11, 3.16, 3.19, 3.20, 3.21 and Section 4.1 (except Section 4.1(a)(1) and (a)(2)) hereof and have Liens, if any, on the Collateral securing
the Notes released, with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will
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 will continue to be deemed
“outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and 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 6.1(a) hereof, but, except as specified above, the remainder of this Indenture and such Notes
and Guarantees will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(a)(3) (other than with respect to Section 4.1(a)(1) and (a)(2)), 6.1(a)4), 6.1(a)(5), 6.1(a)6),
6.1(a)7) (with respect only to a Guarantor that is a Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary), and 6.1(a)(8) (with respect only to a Guarantor that is a
Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary) hereof shall not constitute Events of Default.
Section 8.4 Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.2 or 8.3 hereof:
(1) the Issuer must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of and premium, if any, interest, due on the Notes issued under this Indenture on the stated maturity date or on the applicable Redemption Date, as the case may be, and the Issuer must specify whether such Notes are being
defeased to maturity or to a particular Redemption Date; provided, that upon any
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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
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
on or prior to the Redemption Date; provided that the Trustee shall have no liability whatsoever in the event that such Applicable Premium Deficit is not in fact paid after any legal defeasance or covenant defeasance. Any Applicable Premium
Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least two (2) Business Days prior to the Redemption Date that confirms that such Applicable Premium Deficit shall be applied toward such redemption;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that,
subject to customary assumptions and exclusions;
(A) the Issuer has received from, or there has been published by, the
United States Internal Revenue Service a ruling; or
(B) since the issuance of such Notes, 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, in their capacity as 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;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United
States stating 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;
(4) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the
granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Credit Facilities or any other 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;
(6) [reserved];
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(7) the Issuer shall have delivered to the Trustee an Officer’s
Certificate to the effect that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Issuer or any Guarantor; and
(8) 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 to the effect 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 8.5 Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to
Section 8.6 hereof, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect of the outstanding Notes will 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 the Issuer 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 will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 8.4 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.
Notwithstanding anything in this Article VIII to the contrary, the Trustee will deliver or pay to the Issuer from time to
time upon the request of the Issuer any money or U.S. Government Obligations held by it as provided in Section 8.4 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 8.4(1) 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 8.6 Repayment to the Issuer. 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 or interest on, any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid
to the Issuer on its written request unless an abandoned property law designates another Person or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note will thereafter be permitted to look only to the Issuer
for payment thereof unless an abandoned property law designates another Person, 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, will thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Issuer cause to be published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to
the Issuer.
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Section 8.7 Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. dollars or U.S. Government Obligations in accordance with Section 8.2 or 8.3 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 will be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case may be;
provided, however, that, if the Issuer make any payment of principal of, premium, or interest on, any Note following the reinstatement of its obligations, the Issuer will be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
Section 9.1
Without Consent of Holders. Notwithstanding Section 9.2 of this Indenture, the Issuer, any Guarantor (with respect to its Note Guarantee or this Indenture), the Trustee and the Notes Collateral Agent, as applicable,
may amend, supplement or modify the Note Documents, and the Company may direct the Trustee and the Notes Collateral Agent, as applicable, to enter into an amendment to the Note Documents, without the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, defect, error or inconsistency, conform any provision to any provision in the
Exchange Offering Memorandum or reduce the minimum denomination of the Notes;
(2) to provide for the assumption by a
successor Person of the obligations of the Issuer or a Guarantor under any Note Document or to comply with Section 4.1;
(3) to provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of this
Indenture relating to the form of the Notes (including related definitions);
(4) to add to or modify the covenants or
provide for a Note Guarantee for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Restricted Subsidiary;
(5) to make any change (including changing the CUSIP or other identifying number on any Notes) that would provide any
additional rights or benefits to the Holders or that does not adversely affect the rights of any Holder in any material respect;
(6) at the Company’s election, to comply with any requirement of the SEC in connection with the qualification of this
Indenture under the Trust Indenture Act, if such qualification is required;
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(7) to make such provisions as necessary (as determined in good faith by the
Company) for the issuance of Additional Notes in accordance with the terms of this Indenture;
(8) to provide for any
Restricted Subsidiary to provide a Note Guarantee in accordance with Section 3.7, to add Guarantees with respect to the Notes, to add collateral to or for the benefit of the Notes, or to confirm and evidence the release,
termination, discharge or retaking of any Guarantee or Lien with respect to or securing the Notes when such release, termination, discharge or retaking is provided for under this Indenture;
(9) to evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee or successor Paying
Agent thereunder pursuant to the requirements hereof or to provide for the accession by the Trustee to any Note Document;
(10) [reserved];
(11) to add an obligor or a Guarantor under this Indenture;
(12) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as not
prohibited by this Indenture, including, without limitation, to facilitate the issuance and administration of Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the rights of Holders to transfer the Notes in any material respect;
(13) to comply with the rules and procedures of any applicable securities depositary;
(14) to make any amendment to the provisions of this Indenture, the Guarantees and/or the Notes to eliminate the effect of any
Accounting Change or in the application thereof as described in the last paragraph of the definition of “GAAP”;
(15) to mortgage, pledge, hypothecate or grant any other Lien in favor of the Trustee or the Notes Collateral Agent for the
benefit of the Holders, as additional security for the payment and performance of all or any portion of the Notes Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien
is required to be granted to or for the benefit of the Trustee or the Notes Collateral Agent pursuant to this Indenture, any of the Notes Collateral Documents or otherwise;
(16) to add Additional First Lien Secured Parties or Additional Junior Lien Secured Parties to any Notes Collateral Document;
(17) to enter into any Intercreditor Agreement, any joinder thereto or any amendment, restatement, amendment and
restatement, supplement or other modification permitted pursuant to Section 7.11;
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(18) in the case of any Notes Collateral Document, include therein any
legend required to be set forth therein pursuant to any Intercreditor Agreement or modify any such legend as required by any Intercreditor Agreement;
(19) provide for the succession of any parties to any Notes Collateral Document (and other amendments that are administrative
or ministerial in nature) in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplementing or other modification from time to time of the Credit Agreements or any other agreement that is not
prohibited by this Indenture; and
(20) to release Collateral from the Lien securing the Notes Obligations when expressly
permitted or required by this Indenture, any Notes Collateral Document or any Intercreditor Agreement.
Subject to
Section 9.2, upon the request of the Issuer and upon receipt by the Trustee and the Notes Collateral Agent, as applicable, of the documents described in Sections 9.6 and 13.2 hereof, the Trustee and the Notes
Collateral Agent, as applicable, will join with the Issuer and the Guarantors in the execution of such amendment or supplement unless such amendment or supplement affects the Trustee’s or the Notes Collateral Agent’s own rights, duties,
liabilities or immunities under this Indenture or otherwise, in which case the Trustee or the Notes Collateral Agent, as applicable, may in its discretion, but will not be obligated to, enter into such amendment or supplement.
Section 9.2 With Consent of Holders. Except as provided below in this Section 9.2, the Issuer, the
Guarantors, the Trustee and the Notes Collateral Agent, if applicable, may amend or supplement the Note Documents with the consent of the Holders of at least a majority in principal amount of all the outstanding Notes issued under this Indenture,
including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, and any 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, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes and the Guarantees may be waived with the consent of the
Holders of at least a majority in principal amount of all the outstanding Notes issued under this Indenture (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes).
Section 2.12 hereof and Section 13.4 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.2.
Upon the request of the Issuer, and upon delivery to the Trustee or the Notes Collateral Agent, as applicable, of evidence of the consent of
the Holders of Notes as aforesaid, and upon receipt by the Trustee or the Notes Collateral Agent, as applicable, of the documents described in Section 9.6 and 13.2 hereof, the Trustee or the Notes Collateral Agent, as
applicable, will join with the Issuer and the Guarantors in the execution of such amendment or supplement unless such amendment or supplement affects the Trustee’s or the Notes Collateral Agent’s, as applicable, own rights, duties,
liabilities or immunities under this Indenture or otherwise, in which case the Trustee or the Notes Collateral Agent, as applicable, may in its discretion, but will not be obligated to, enter into such amendment or supplement.
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Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may
not, with respect to any Notes issued thereunder and held by a nonconsenting Holder:
(1) reduce, or have the effect of
reducing, the percentage of the aggregate principal amount of Notes whose Holders must consent to an amendment, including, for the avoidance of doubt, the incurrence of Obligations in contemplation of or for a primary purpose of influencing any
voting threshold for purposes of any amendment, modification or waiver of any Note Document that is to occur simultaneously or substantially simultaneously with the incurrence of such Obligations;
(2) reduce the stated rate of or extend the stated time for payment of interest on any such Note (other than provisions
relating to Section 3.5 and Section 3.9);
(3) reduce the principal of
or extend the Stated Maturity of any such Note (other than provisions relating to Section 3.5 and Section 3.9);
(4) reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed,
in each case as set forth in Section 5.7;
(5) make any such Note payable in currency other than
that stated in such Note;
(6) impair the contractual right of any Holder to receive payment of principal of and interest
on such Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Notes (and, for the avoidance of doubt, the amendment, supplement or modification
in accordance with the terms of this Indenture of Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.18, 3.22, 3.23, 3.24 and clauses (3), (4), (5) and
(6) of Section 6.1(a) and the related definitions shall be deemed not to impair the contractual right of any Holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates
therefor or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Note);
(7)
waive a Default or Event of Default with respect to the nonpayment of principal, premium or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of such Notes and
a waiver of the payment default that resulted from such acceleration); or
(8) make any change in the amendment or waiver
provisions which require the Holders’ consent described in this sentence.
Notwithstanding the foregoing, without the consent of the
Holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding, no amendment or waiver may (A) make any change in any Notes Collateral Document or the provisions in this Indenture
dealing with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes, other than as provided under the
terms of this Indenture or the Notes Collateral Documents, (B) except as permitted by this Indenture, modify the Note Guarantees of any Significant Subsidiary in any manner materially adverse to the Holders, (C) subordinate the Liens
securing the
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Obligations in respect of the Notes in all or substantially all of the Collateral to any Indebtedness for borrowed money, or subordinate the Obligations in respect of the Notes in right of
payment to any Indebtedness for borrowed money, except, in either case, (i) Indebtedness that is expressly permitted to rank senior in Lien or payment priority, as applicable, to the Obligations in respect of the Notes as of the Issue Date, or
(ii) either (a) pursuant to a transaction providing for the incurrence of Indebtedness for borrowed money that ranks senior in Lien or payment priority to all obligations under this Indenture in which participation is offered to all affected
Holders on a pro rata basis (together with all holders of Obligations with Pari Passu Lien Priority) on the same terms and conditions as offered to all other providers of such Indebtedness (other than bona fide backstop fees and reimbursement of
counsel fees and other expenses in connection with the negotiation of the terms of such transaction) or (b) in connection with a “debtor in possession” financing (or any similar financing arrangement in an insolvency proceeding in a
non-U.S. jurisdiction) or use of cash collateral; (D) amend, modify or waive Section 3.22 or the definition of “Liability Management Transaction”, (E) amend, modify
or waive the provisions of Section 3.18 or (F) amend, modify or waive the proviso to Section 10.2(b)(5).
It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder of the Notes given in connection with a tender or exchange of such
Holder’s Notes will not be rendered invalid by such tender or exchange.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers. 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 or waiver is
not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of 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 give their consent or
take any other action described in this Section 9.4 or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, 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.
Section 9.5 Notation on or Exchange of Notes. The Issuer 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 Issuer Order, authenticate new Notes that reflect the amendment, supplement or waiver.
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Failure to make the appropriate notation or issue a new Note will not affect the validity
and effect of such amendment, supplement or waiver.
Section 9.6 Trustee and the Notes Collateral Agent to Sign Amendments.
The Trustee and the Notes Collateral Agent shall sign any amendment or supplement, security documents or intercreditor agreement authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee and the Notes Collateral Agent, as applicable. In executing any amendment or supplement, security documents or intercreditor agreement, the Trustee and the Notes Collateral Agent will be entitled to
receive and (subject to Sections 7.1 and 7.2 hereof) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.2 hereof, an Officer’s Certificate and an
Opinion of Counsel stating that the execution of such amendment or supplement, security documents or intercreditor agreement is authorized or permitted by this Indenture and any applicable Note Documents and is, in respect of such Opinion of
Counsel, valid, binding and enforceable against the Issuer or any Guarantor, as the case may be, in accordance with its terms. Notwithstanding the foregoing, no Opinion of Counsel shall be required in connection with the execution of a supplemental
indenture that is substantially in the form attached hereto as Exhibit B.
ARTICLE X
GUARANTEE
Section 10.1
Guarantee. Subject to the provisions of this Article X, each Guarantor that executes this Indenture or a supplemental indenture hereto will fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety,
jointly and severally with each other Guarantor, to each Holder, the Trustee and the Notes Collateral Agent the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if
any, and interest on the Notes and all other obligations and liabilities of the Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.7) (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor agrees that the Guaranteed Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the
extent such other Indebtedness is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness.
To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture (or
a supplemental indenture that is substantially in the form attached hereto as Exhibit B) shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and
effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee.
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If an Officer whose signature is on this Indenture (or a supplemental indenture that is
substantially in the form attached hereto as Exhibit B) no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
Each
Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the
Guaranteed Obligations.
Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed
Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this
Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other
agreement; (d) the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer;
(g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor
agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Guarantee in compliance with Section 10.2, Article VIII or
Article XI. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of
the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
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In furtherance of the foregoing and not in limitation of any other right which any Holder
has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each
Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of
such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition
in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of
the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purposes of this Note Guarantee.
Each Guarantor also agrees to pay any and all fees, costs and expenses (including
attorneys’ fees and expenses) incurred by the Trustee, the Notes Collateral Agent or the Holders in enforcing any rights under this Section 10.1.
Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal, foreign, state or provincial law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
(b) Any Note Guarantee of a Guarantor shall be automatically and unconditionally released and discharged upon:
(1) a sale, exchange, transfer or other disposition (including by way of merger, amalgamation, consolidation, dividend
distribution or otherwise) of the Capital Stock of such Guarantor, in each case as a result of which such Guarantor ceases to be a Restricted Subsidiary, or the sale, exchange, transfer or other disposition, of all or substantially all of the assets
of the Guarantor, to a Person other than to the Company or a Restricted Subsidiary, in each case to the extent not otherwise prohibited by this Indenture;
(2) the designation in accordance with this Indenture of the Guarantor as an Unrestricted Subsidiary or the occurrence of any
event after which the Guarantor is no longer a Restricted Subsidiary;
(3) defeasance or discharge of the Notes pursuant to
Article VIII or Article XI;
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(4) [reserved];
(5) such Guarantor becoming an Excluded Subsidiary as a result of a transaction or designation permitted hereunder;
provided that no such release shall occur if such Guarantor becomes an Excluded Subsidiary solely under (x) clause (viii) of the definition of “Excluded Subsidiary” unless in connection with a bona fide Disposition of
the Capital Stock of such Guarantor to a Person that is not a Note Party or an Affiliate of a Note Party that is permitted hereunder, or (y) clause (xi) of the definition of “Excluded Subsidiary”;
(6) upon the merger, amalgamation or consolidation of any Guarantor with and into the Company or another Guarantor or upon the
liquidation of such Guarantor, in each case, in compliance with the applicable provisions of this Indenture;
(7) upon the
achievement of Investment Grade Status by the Notes; provided that such Note Guarantee shall be reinstated upon the Reversion Date;
(8) in accordance with the applicable Intercreditor Agreements; or
(9) as described under Article IX.
If the Trustee or Notes Collateral Agent is asked to acknowledge such release or take any other action in connection with such release, the
Trustee or the Notes Collateral Agent, as applicable, shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel, each stating that all covenants and conditions precedent contained in this Indenture and any applicable Note
Document to such release and the requested action have been complied with.
Section 10.3 Right of Contribution. Each Guarantor
hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share of any payment made on the obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive contribution from and
against the Issuer or any other Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Guarantor to the
Trustee, the Notes Collateral Agent and the Holders and each Guarantor shall remain liable to the Trustee, the Notes Collateral Agent and the Holders for the full amount guaranteed by such Guarantor hereunder.
Section 10.4 No Subrogation. Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be
entitled to be subrogated to any of the rights of the Trustee, the Notes Collateral Agent or any Holder against the Issuer or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee, the Notes Collateral
Agent or any Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Trustee, the Notes Collateral Agent and the Holders by the Issuer on account of the Guaranteed Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee, the Notes Collateral Agent and the Holders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obligations.
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ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1 Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder and the Liens, if any, on the Collateral securing the Notes will be released, when:
(a) either:
(1) all Notes that have been authenticated and delivered, except lost, stolen or destroyed Notes that 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
(2) all such Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of
the making of a notice of redemption or otherwise or (ii) will become due and payable within one year at their Stated Maturity or (iii) 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;
(b) the Issuer has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness on such Notes not previously delivered to the Trustee for cancellation, for principal, premium, if any, and interest to the date of deposit (in the case of Notes that have become
due and payable), or to the Stated Maturity or Redemption Date, as the case may be; 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 equal to the Applicable Premium calculated as of the date of the notice of redemption, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate,
with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the Redemption Date (provided that the Trustee shall have no liability whatsoever in the event that such Applicable Premium Deficit is not in fact paid
after any satisfaction and discharge), and any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least two (2) Business Days prior to the Redemption Date that confirms that such
Applicable Premium Deficit shall be applied toward such redemption;
(c) no Default or Event of Default (other than that resulting from
borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) with respect to this Indenture or the Notes issued hereunder shall have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under the Credit Facilities or any other 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;
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(d) the Issuer has paid or caused to be paid all sums payable by the Issuer under this
Indenture; and
(e) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money in U.S. dollars toward
the payment of such Notes issued hereunder at maturity or the Redemption Date, as the case may be.
In addition, the Issuer shall deliver
an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all covenants and conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the Issuer’s obligations to the Trustee and the Notes Collateral Agent
in Section 7.7 hereof and, if money in U.S. dollars has been deposited with the Trustee pursuant to clause (a)(1) of this Section 11.1, the provisions of Sections 11.2 and 8.6 hereof
will survive.
Section 11.2 Application of Trust Money. Subject to the provisions of Section 8.6
hereof, all money in U.S. dollars or U.S. Government Obligations deposited with the Trustee pursuant to Section 11.1 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 Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium) and interest for whose payment
such money in U.S. dollars or U.S. Government Obligations has been deposited with the Trustee; but such money in U.S. dollars or U.S. Government Obligations 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 Obligations in accordance with
Section 11.1 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 11.1 hereof; provided that if the Issuer have made any payment of
principal of, premium or interest on, any Notes because of 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 or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE XII
SECURITY
Section 12.1 Notes Collateral Documents.
(a) On and from the Issue Date, the due and punctual payment of the principal of, premium, if any, and interest on the Notes when and as the
same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes and payment and performance of all
other Obligations of the Company and the Guarantors to the Holders, the Trustee or the Notes Collateral Agent under this Indenture, the Notes, the Note Guarantees, and the Notes Collateral Documents, according to the terms hereunder or thereunder,
shall be secured as provided in the Notes Collateral Documents.
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(b) On or following the Issue Date and subject to the applicable Intercreditor Agreements,
the Issuer and the Guarantors shall promptly execute, file or cause the filing of any and all documents, financing statements (including continuation statements and amendments to financing statements), agreements and instruments, and take all
further action that may be required under applicable law, or that the Notes Collateral Agent may reasonably request, in order to grant, preserve, maintain, protect and perfect (or continue the perfection of) the validity and priority of the security
interests created or intended to be created by the Notes Collateral Documents in the Collateral (including, for the avoidance of doubt, correcting any material defect or error that may be discovered in the execution, acknowledgement, filing or
recordation of any Notes Collateral Document or other document or instrument relating to any Collateral), all at the expense of the Issuer.
(c) The security interests in the Collateral securing the Notes will not be required to be in place on the Issue Date and will not be perfected
on such date, but will be required to be put in place no later than 60 days after the Issue Date or such later date as the Revolving Credit Agreement Collateral Agent may agree in its reasonable discretion;.
(d) Notwithstanding the foregoing or anything in this Indenture or any other Note Document to the contrary:
(1) Liens required to be granted from time to time shall be subject to exceptions and limitations set forth in the Notes
Collateral Documents;
(2) no deposit account control agreement, securities account control agreement or other control
agreements or control arrangements shall be required with respect to any deposit account, securities account or other asset specifically requiring perfection through control agreements;
(3) in the event any Guarantor is added that is organized in a jurisdiction other than the U.S., such Guarantor shall grant a
perfected lien on substantially all of its assets (other than Excluded Property) pursuant to arrangements reasonably agreed between the Revolving Credit Agreement Collateral Agent and the Company subject to customary limitations in such jurisdiction
to be reasonably agreed to between the Revolving Credit Agreement Collateral Agent and the Company; provided that, other than as provided in the immediately foregoing, no actions in any jurisdiction other than the U.S. or that are necessary to
comply with the laws of any jurisdiction other than the United States of America shall be required in order to create any security interests in assets located, titled, registered or filed outside of the United States of America or to perfect such
security interests (it being understood that other than as provided under this clause (C), there shall be no security agreements, pledge agreements, or share charge (or mortgage) agreements governed under the laws of any jurisdiction other than the
United States of America);
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(4) general statutory limitations, financial assistance, corporate benefit,
capital maintenance rules, fraudulent preference, “thin capitalization” rules, retention of title claims and similar principle may limit the ability of a Foreign Subsidiary to provide a Guarantee or Collateral or may require that the
Guarantee or Collateral be limited by an amount or otherwise, in each case as reasonably determined by the Company in consultation with the Revolving Credit Agreement Collateral Agent;
(5) no stock certificates of Immaterial Subsidiaries shall be required to be delivered to the Collateral Agent; and
(6) no action shall be required with respect to creation or perfection of security interests with respect to such any fee-owned or leasehold interests, including to enter into mortgages or deeds of trust or to obtain landlord waivers, estoppels or collateral access letters.
Section 12.2 Release of Collateral.
The Company and the Guarantors will be entitled to the automatic and immediate release of property and other assets constituting Collateral
from the Liens securing the Notes and the Notes Obligations under any one or more of the following circumstances:
(1) to
enable the Company and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such
property or assets (to a Person that is not the Company or a Guarantor) to the extent consummated in accordance with, or not prohibited by, Section 3.5 hereof;
(2) in the case any Collateral becomes Excluded Property;
(3) in the case of a Guarantor that is released from its Note Guarantee pursuant to the terms of this Indenture, the release of
the property and assets of such Guarantor;
(4) upon the achievement of Investment Grade Status;
(5) if all other liens on such Collateral securing First Lien Obligations are released or will be released simultaneously
therewith (other than any release by, or as a result of, payment in full and irrevocable termination of such First Lien Obligations);
(6) in accordance with Article IX hereof; or
(7) in accordance with the terms of the Intercreditor Agreements.
The Liens on the Collateral securing the Notes and the related Note Guarantees also will be released automatically and without further action
by the Notes Collateral Agent, the Trustee or the Holders (i) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the related Note Guarantees and the
Notes Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid, or (ii) upon a legal defeasance or covenant defeasance pursuant to Article VIII or a
discharge pursuant to Article XI.
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Notwithstanding clause (4) above, if, after achievement of Investment Grade
Status, the Notes cease to have such Investment Grade Status, the Company and the Guarantors shall take all actions reasonably necessary to provide to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the
Notes valid, perfected, first priority security interests (subject to Permitted Liens) in the Collateral as soon as reasonably practicable, but in any event within 60 days after such Reversion Date (or such later date as the Revolving Credit
Agreement Collateral Agent may agree in its reasonable discretion).
With respect to any release or subordination of Collateral, upon
receipt of an Officer’s Certificate and Opinion of Counsel stating that all covenants and conditions precedent under this Indenture and the Notes Collateral Documents, as applicable, to such release or subordination have been met and that it
is permitted for the Trustee or the Notes Collateral Agent, as applicable, to execute and deliver the documents requested by the Company in connection with such release and any necessary or proper instruments of termination, satisfaction or release
prepared by the Company, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) any instruments or releases to evidence the release of any Guarantees and Collateral permitted to be released
pursuant to this Indenture and the Notes Collateral Documents, as applicable, and shall do or cause to be done (at the Company’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither
the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate and Opinion of Counsel, and notwithstanding any term in this Indenture or in any Notes Collateral
Document to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and
until it receives such Officer’s Certificate and Opinion of Counsel, upon which it shall be entitled to conclusively rely.
Section 12.3 Suits to Protect the Collateral.
Subject to the provisions of Article VII, the Notes Collateral Documents and the applicable Intercreditor Agreements, the Trustee may
or may direct the Notes Collateral Agent to take all actions it determines in order to:
(a) enforce any of the terms of the Notes
Collateral Documents; and
(b) collect and receive any and all amounts payable in respect of the Notes Obligations hereunder.
Subject to the provisions of the Notes Collateral Documents and the applicable Intercreditor Agreements, the Trustee and the Notes Collateral
Agent shall have the power to institute and to maintain such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to prevent any impairment of the Collateral by any acts which may be unlawful or in violation of any of the
Notes Collateral Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this
Section 12.3 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
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Section 12.4 Authorization of Receipt of Funds by the Trustee Under the Notes
Collateral Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for
the benefit of the Holders under the Notes Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 12.5 Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the
Notes Collateral Agent or the Trustee to execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article XII to be sold be under any obligation to ascertain or inquire into the authority of the Company or
the applicable Guarantor to make any such sale or other transfer.
Section 12.6 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article
XII upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article XII; and if the Trustee or the Notes Collateral Agent shall be in the possession of the Collateral under any
provision of this Indenture, then such powers may be exercised by the Trustee or the Notes Collateral Agent.
Section 12.7 Notes
Collateral Agent.
(a) The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes
Collateral Agent as its agent under this Indenture and the Notes Collateral Documents, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on its behalf
under the provisions of this Indenture and the Notes Collateral Documents, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture and the Notes Collateral
Documents, and consents and agrees to the terms of each Notes Collateral Document, as the same may be in effect or may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their
respective terms. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the
provisions of this Indenture and the Notes Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein
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shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Notes Collateral Documents, the duties of the Notes
Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Notes Collateral Documents, to which the Notes
Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Company or any Guarantor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Notes Collateral Documents, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of
the term “agent” in this Indenture with reference to the Notes Collateral 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) Notwithstanding anything to the contrary contained herein, the Notes Collateral Agent shall be entitled to act pursuant to the instructions
of the Holders and the Trustee with respect to the Notes Collateral Documents and the Collateral.
(c) The rights, privileges, benefits,
immunities, indemnities and other protections given to the Trustee are extended to, and shall be enforceable by, the Notes Collateral Agent as if the Notes Collateral Agent were named as the Trustee herein and the Notes Collateral Documents were
named as this Indenture herein. The Notes Collateral Agent shall be entitled to compensation, reimbursement and indemnity as set forth in Section 7.7, as if references therein to Trustee were references to Notes Collateral
Agent. For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Notes Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking action, shall survive the
satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Notes Collateral Agent, in such capacity.
(d) The Company hereby agrees that the Notes Collateral Agent shall hold the Collateral on behalf of and for the benefit of all of the Holders,
the Trustee and the Notes Collateral Agent, in each case pursuant to the terms of the Notes Collateral Documents and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Notes Collateral Agent and
the Trustee, and that the Lien of this Indenture and the Notes Collateral Documents in respect of the Trustee, the Notes Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Notes Collateral Documents and
actions that may be taken thereunder. The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code can be
perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes Collateral
Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
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(e) The Notes Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of its powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Notes Collateral Documents
to which it is a party, except for its own gross negligence or willful misconduct. The Notes Collateral Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents,
except for willful misconduct or if it shall have been grossly negligent in ascertaining the pertinent facts.
(f) The Notes Collateral
Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture or the Notes Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a
majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. Except as otherwise provided in the Notes Collateral Documents, the Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Notes
Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Holders. If the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any action, the Notes
Collateral Agent shall be entitled to refrain from taking such action unless and until the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Notes
Collateral Agent shall not incur liability to any Person by reason of so refraining.
(g) The Notes Collateral Agent shall take such action
with respect to such Default or Event of Default as may be requested by the Trustee or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.7), subject to the terms of the Notes
Collateral Documents and the applicable Intercreditor Agreements.
(h) Except as otherwise explicitly provided herein or in the Notes
Collateral Documents, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture or the Note Documents, except for any such proceeds or payments received by the Trustee from the Notes Collateral
Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VI, the Trustee shall promptly turn the same over to the Notes
Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture and the Notes Collateral
Documents.
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(j) Neither the Trustee nor the Notes Collateral Agent shall have any obligation whatsoever
to any of the Holders or to the Trustee, in the case of the Notes Collateral Agent, to assure that the Collateral exists or is owned by the Company or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Notes
Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Company’s or any
Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Notes Collateral Documents has been properly and completely listed or delivered, as the case may be, or the value, genuineness,
validity, ownership, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers
granted or available to the Notes Collateral Agent pursuant to this Indenture or any Notes Collateral Document, other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Holders of a majority in
aggregate principal amount of the then outstanding Notes or as otherwise provided in the Notes Collateral Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or the Notes Collateral Document, in no
event shall the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be
created by this Indenture or the Notes Collateral Documents (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall the Notes
Collateral Agent be responsible for, or makes any representation regarding, the validity, effectiveness or priority of any of the Notes Collateral Documents or the security interests or Liens intended to be created thereby.
(k) The Notes Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income
thereon. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which they accord similar property held for its
own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by
the Notes Collateral Agent in good faith. The Notes Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damaged in transit.
(l) Upon the receipt by the Notes Collateral Agent of a written request of the Company signed by an Officer (a “Security Document
Order”), the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Notes Collateral Document to be executed after Issue Date.
Such Security Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 12.7, (ii) instruct the Notes Collateral
Agent to execute and enter into such Notes Collateral Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Notes Collateral Document have been compiled with; provided that in no
event shall the Notes Collateral Agent be required to enter into a Notes Collateral Document that it determines adversely affects the Notes Collateral Agent. The Holders, by their acceptance of the Notes, hereby authorize and direct the Notes
Collateral Agent to execute such Notes Collateral Documents.
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(m) Upon receipt by the Notes Collateral Agent of a Security Document Order, the Notes
Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement. Such Security Document Order shall (i) state that it is
being delivered to the Notes Collateral Agent pursuant to, and is a Notes Collateral Document referred to in this Section 12.7(m), (ii) certify that the Intercreditor Agreement (as applicable) complies with the terms of
this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Notes Collateral Agent to
execute and enter into the Intercreditor Agreement; provided that in no event shall the Notes Collateral Agent be required to enter into the Intercreditor Agreement if it determines that such document adversely affects the Notes Collateral
Agent. The Holders, by their acceptance of the Notes, authorize and direct the Notes Collateral Agent to execute such agreements and the Notes Collateral Agent shall be entitled to conclusively rely on such Security Document Order.
(n) The Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the
Notes Collateral Documents, and to the extent not prohibited under the First Lien Intercreditor Agreement and the Junior Lien Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and
the Holders in accordance with the provisions of Section 6.10 and the other provisions of this Indenture.
(o)
Notwithstanding anything to the contrary contained in this Indenture or the Notes Collateral Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire
control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if
the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Notes Collateral Agent
shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(p) The parties hereto and the Holders hereby agree and acknowledge that neither the Notes Collateral Agent nor the Trustee shall assume, be
responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs
(including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind
whatsoever, pursuant to any environmental law as a result of this Indenture or the Notes Collateral Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the
exercise of its rights under this Indenture and the Notes Collateral Documents, the Notes Collateral Agent or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent or the Trustee
in the Collateral and that any such actions taken by the Notes Collateral Agent or the Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In
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the event that the Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry
out any fiduciary or trust obligation for the benefit of another, which in the Notes Collateral Agent’s or the Trustee’s sole discretion may cause the Notes Collateral Agent or the Trustee to be considered an “owner or
operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Notes Collateral Agent or the Trustee to incur
liability under CERCLA or any other federal, state or local law, the Notes Collateral Agent and the Trustee reserves the right, instead of taking such action, to either resign as the Notes Collateral Agent or the Trustee or arrange for the transfer
of the title or control of the asset to a court-appointed receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to the Company, the Guarantors or any other Person for any environmental claims or contribution actions under any
federal, state or local law, rule or regulation by reason of the Notes Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of
hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Notes Collateral Agent or the Trustee) other than the Company or the
Guarantors, subject to the terms of the Notes Collateral Documents, a majority in interest of Holders shall direct the Notes Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Notes Collateral Agent or the
Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(q) Neither the Trustee nor the
Notes Collateral Agent shall be under any obligation to effect or maintain insurance or to renew any policies of insurance or to make any determination or inquire as to the sufficiency of any policies of insurance carried by the Company or any
Guarantor, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be
made.
(r) Following the discharge of the Obligations in respect of the Revolving Credit Agreement, any determination under this Indenture
that is stated to be or is required to be made by the Revolving Credit Agreement Collateral Agent shall be made by the Controlling Collateral Agent provided that if the Controlling Collateral Agent is the Notes Collateral Agent, any such
determination shall be made by the Company in good faith. Neither the Notes Collateral Agent nor the Trustee shall have any responsibility or liability for the actions or omissions of the Revolving Credit Agreement Collateral Agent or the collateral
agent under the Term Loan Credit Agreement or any other “Controlling Collateral Agent” under any Intercreditor Agreement, nor shall the Trustee or Notes Collateral Agent be obligated at any time to indemnify any person in connection with
the exercise of any remedy under the Notes Collateral Documents.
(s) The Notes Collateral Agent may resign at any time by notice to the
Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. The Notes Collateral Agent may be removed by the Company at any time, upon thirty days written notice to
the Notes Collateral Agent. If the Notes Collateral Agent resigns or is removed under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within 30
days after the Notes Collateral Agent gave notice of resignation or was removed, the
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retiring Notes Collateral Agent may (at the expense of the Company), at its option, appoint a successor Notes Collateral Agent or petition a court of competent jurisdiction for the appointment of
a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes
Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral
Agent’s resignation or removal hereunder, the provisions of this Section 12.7 (and Section 7.7) shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall
not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices. Any notice, request, direction, consent or communication made pursuant to the provisions of this Indenture
or the Notes shall be in writing and delivered in person, sent by electronic mail in pdf format, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer or to any Guarantor:
Accendra Health, Inc.
4435
Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Email: investor.relations@accendra.com
with a copy to:
Kirkland & Ellis LLP
601 Lexington Ave
New York, New
York 10022
Attention: Jennifer L. Lee, P.C.
Email: jennifer.lee@kirkland.com
if to the Trustee or the Notes Collateral Agent, at its Corporate Trust Office, which Corporate Trust Office for purposes of this Indenture is
at the date hereof located at:
Regions Bank
1180 West Peachtree Street, Suite 1200
Atlanta, GA 30309
Attention:
Corporate Trust Services – Accendra Health, Inc.
Email: Kristine.prall@regions.com
The Issuer, the Trustee or the Notes Collateral Agent by written notice to the other may designate additional or different addresses for
subsequent notices or communications.
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Any notice or communication to the Issuer or the Guarantors shall be deemed to have been
given or made as of the date so delivered if personally delivered or if delivered electronically, in pdf format; when receipt is acknowledged, if telecopied; and seven (7) calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication to the Trustee or the Notes Collateral Agent shall be deemed delivered upon
receipt.
Any notice or communication sent to a Holder shall be electronically delivered or mailed to the Holder at the Holder’s
address as it appears in the Notes Register and shall be sufficiently given if so sent within the time prescribed.
Failure to mail or
deliver electronically 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 sent in the manner provided above, it is duly given, whether or not the
addressee receives it, except that notices to the Trustee or the Notes Collateral Agent shall be effective only upon receipt.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event
(including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee.
Section 13.2 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee and/or the Notes Collateral Agent, as applicable, to
take or refrain from taking any action under this Indenture or any Notes Collateral Document, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or the Notes Collateral Agent, as applicable:
(1) an Officer’s Certificate in form satisfactory to the Trustee or the Notes Collateral Agent, as applicable (which
shall include the statements set forth in Section 13.3 hereof) stating that, in the opinion of the signers, all covenants and conditions precedent, if any, provided for in this Indenture and the Notes Collateral Documents
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form satisfactory to the Trustee
or the Notes Collateral Agent (which shall include the statements set forth in Section 13.3 hereof) stating that, in the opinion of such counsel, all such covenants and conditions precedent have been complied with.
Section 13.3 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture:
(1) a statement that the individual making such certificate or opinion has
read such covenants or conditions precedent provided for in this Indenture and the Notes Collateral Documents relating to the proposed action;
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(2) 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;
(3) a statement
that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenants or conditions precedent have been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, all covenants and conditions precedent as
provided for in this Indenture and the Notes Collateral Documents relating to the proposed action have been complied with.
In giving such Opinion of
Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 13.4 When Notes Disregarded. In determining whether the Holders of the required aggregate principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee or the Notes
Collateral Agent shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee or the Notes Collateral Agent actually knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Notes outstanding at the time shall be considered in any such determination.
Section 13.5 Rules by Trustee,
Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 13.6 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking
institutions are authorized or required to be closed in New York, New York or the jurisdiction of the place of payment. If a payment date or a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 13.7 Governing Law. THIS INDENTURE, THE NOTES AND THE GUARANTEES AND THE RIGHTS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.8 Jurisdiction. The
Issuer and the Guarantors agree that any suit, action or proceeding against the Issuer or any Guarantor brought by any Holder or the Trustee arising out of or based upon this Indenture, the Note Guarantee or the Notes may be instituted in any state
or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any suit,
action or proceeding. The Issuer and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in
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connection with this Indenture, the Note Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in
such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Issuer and the Guarantors agree that final judgment in any such suit, action
or proceeding brought in such court shall be conclusive and binding upon the Issuer or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Issuer or the Guarantors, as the case may be, are subject by
a suit upon such judgment.
Section 13.9 Waivers of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS, THE HOLDERS, THE TRUSTEE
AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
NOTES OR THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.
Section 13.10 USA PATRIOT Act. The parties hereto acknowledge
that in accordance with Section 326 of the USA PATRIOT Act, the Trustee or the Notes Collateral Agent, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and
record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Indenture agree that they will provide the Trustee or the Notes Collateral Agent with such information as it may
request in order to satisfy the requirements of the USA PATRIOT Act.
Section 13.11 No Recourse Against Others. No director,
officer, employee, incorporator or shareholder of the Issuer or any of its respective Subsidiaries or Affiliates, or such (other than the Issuer and the Guarantors), shall have any liability for any obligations of the Issuer or the Guarantors under
the Note Documents or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
Section 13.12 Successors. All agreements of the Issuer and each Guarantor in this Indenture and the Notes shall bind their
respective successors. All agreements of the Trustee or the Notes Collateral Agent in this Indenture shall bind their respective successors.
Section 13.13 Counterparts; 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.
The exchange of copies of this Indenture and of signature
pages by facsimile, PDF or other electronic transmission (including a digital signature provided by DocuSign) 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, PDF or other electronic methods shall be deemed to be their original signatures for all purposes.
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Unless otherwise provided in this Indenture or in any Note, the words “execute”, “execution”, “signed”, and “signature” and words of similar import
used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the
fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the
Uniform Electronic Transactions Act; provided that, notwithstanding anything to the contrary set forth herein, neither the Trustee nor the Notes Collateral Agent is under any obligation to agree to accept electronic signatures in any form or
format unless expressly agreed to by the Trustee or the Notes Collateral Agent pursuant to procedures approved by the Trustee or the Notes Collateral Agent, as applicable.
Section 13.14 Table of Contents; Headings. 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 intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 13.15 Force Majeure. In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, 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 and hardware) services, it being understood that the Trustee or the
Notes Collateral Agent, as applicable, shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.16 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 13.17 Intercreditor Agreements. Reference is made to the Intercreditor Agreements. Each Holder, by its acceptance of a
Note, (a) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements, and (b) authorizes and instructs the Trustee and the Notes Collateral Agent, as applicable, to enter into
(i) the Intercreditor Agreements, as Trustee and as Notes Collateral Agent, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein and (ii) any joinder
thereto or any amendment, restatement, amendment and restatement, supplement or other modification permitted pursuant to Section 7.11, in each case, subject to the terms of the applicable Intercreditor Agreements and the
terms thereof. In the event of any conflict or inconsistency between any applicable Intercreditor Agreement and this Indenture, the provisions of such Intercreditor Agreement shall control.
186
Section 13.18 Waiver of Immunities. To the extent that the Issuer or any Guarantor or any of its
properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from
set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of
judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to their obligations, liabilities or any other
matter under or arising out of or in connection with this Indenture, the Notes or the Note Guarantees, the Issuer and each Guarantor hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or
claim any such immunity and consents to such relief and enforcement.
Section 13.19 Judgment Currency. The Issuer and each
Guarantor agrees to indemnify the recipient against any loss incurred by such recipient as a result of any judgment or order being given or made against the Issuer or any Guarantor for any amount due hereunder and such judgment or order being
expressed and paid in a currency (the “Judgment Currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the Judgment Currency
for the purpose of such judgment or order, and (ii) the rate of exchange in The City of New York at which such party on the date of payment of such judgment or order is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such party if such party had utilized such amount of Judgment Currency to purchase U.S. dollars as promptly as practicable upon such party’s receipt thereof. The foregoing indemnity shall constitute a separate and
independent obligation of the Issuer and each Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, the relevant currency.
[Signature on following pages]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the
date and year first written above.
ACCENDRA HEALTH, INC.,
as the Company
By:
/s/ Jonathan A. Leon
Name: Jonathan A. Leon
Title: Executive Vice President and Chief Financial Officer
BARISTA ACQUISITION I, LLC
BARISTA ACQUISITION II, LLC,
as Guarantors
By:
/s/ Heath H. Galloway
Name: Heath H. Galloway
Title: Executive Vice President, General Counsel and Corporate Secretary
APRIA HEALTHCARE GROUP LLC
APRIA HEALTHCARE LLC
APRIA HOLDCO LLC
APRIA, INC.
CPAP SLEEP STORE LLC
HEALTHY LIVING HOME MEDICAL LLC,
as Guarantors
By:
/s/ Perry A. Bernocchi
Name: Perry A. Bernocchi
Title: Chief Executive Officer
BYRAM HEALTHCARE CENTERS, INC.
BYRUN HOLDINGS I, INC.
LOFTA,
as Guarantors
By:
/s/ Perry A. Bernocchi
Name: Perry A. Bernocchi
Title: Chief Executive Officer and President
[Signature Page to the First Lien Notes Indenture]
O&M BYRAM HOLDINGS, GP,
as Guarantor
By:
BARISTA ACQUISITION I, LLC and
BARISTA ACQUISITION II, LLC
Its: Partners
By:
/s/ Perry A. Bernocchi
Name: Perry A. Bernocchi
Title: Chief Executive Officer
[Signature Page to the First Lien Notes Indenture]
REGIONS BANK,
as Trustee and Notes Collateral Agent
By:
/s/ Kristine Prall
Name: Kristine Prall
Title: Vice President
[Signature Page to the First Lien Notes Indenture]
EXHIBIT A
[FORM OF FACE OF GLOBAL RESTRICTED NOTE]
[Applicable Restricted Notes Legend]
[Depository Legend, if applicable]
[OID Legend, if applicable]
No. [___]
Principal Amount $[___________] [as revised by the Schedule of Increases and Decreases in Global Note attached hereto]1
CUSIP NO. _____________
ACCENDRA HEALTH, INC.,
9.000%
Senior Secured First Lien Notes due 2032
Accendra Health, Inc., a Virginia corporation (the “Issuer”), promises to pay to
[Cede & Co.],2 or its registered assigns, the principal sum of _______________ U. S. dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto],3 on June 15, 2032.
Interest Payment Dates: June 15 and December 15, commencing on
December 15, 2026
Record Dates: June 1 and December 1
Additional provisions of this Note are set forth on the other side of this Note.
1
Insert in Global Notes only.
2
Insert in Global Notes only.
3
Insert in Global Notes only.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
ACCENDRA HEALTH, INC.
By:
Name:
Title:
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TRUSTEE CERTIFICATE OF AUTHENTICATION
This Note is one of the 9.000% Senior Secured First Lien Notes due 2032 referred to in the within-mentioned Indenture.
REGIONS BANK,
as Trustee
By:
Authorized Signatory
Dated:
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[FORM OF REVERSE SIDE OF NOTE]
ACCENDRA HEALTH, INC.
9.000%
SENIOR SECURED FIRST LIEN NOTES DUE 2032
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture.
1. Interest
The Issuer
promises to pay interest on the principal amount of this Note at 9.000% per annum from June 15, 2026 until maturity. The Issuer will pay interest semi-annually in arrears every June 15 and December 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided, that the first Interest Payment Date shall be December 15, 2026. The Issuer shall pay interest on overdue principal at the rate specified herein, and it 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. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment
By no later than 11:00 a.m. (New York City time) on the date on which any principal of, premium, if any, or interest, on any Note is due and
payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, interest when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding June 1 and December 1 at the office or agency of the Issuer maintained for
such purpose pursuant to Section 2.3 of the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent or Registrar designated by the Issuer maintained for such purpose
(which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however,
that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account
located in the United States maintained by the payee, subject to the third to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by
a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United
States 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 15 days immediately preceding the relevant due date for payment (or such
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other date as the Trustee may accept in its discretion). If an Interest Payment Date or a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
3.
Paying Agent and Registrar
The Issuer initially appoints Regions Bank (the “Trustee”) as Registrar and Paying
Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer agent.
4. Indenture
The Issuer issued the Notes
under an Indenture dated as of June 15, 2026, among the Issuer, the Guarantors named therein and the Trustee and the Notes Collateral Agent (as it may be amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”). The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event
of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall control.
The Notes are
senior obligations of the Issuer. The aggregate principal amount of Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one of the 9.000% Senior Secured First Lien Notes due 2032 referred to in the Indenture.
The Notes include (i) $539,249,947 principal amount of the Issuer’s 9.000% Senior Secured First Lien Notes due 2032 issued under the Indenture on June 15, 2026 (the “Initial Notes”) and (ii) if and when issued,
additional Notes that may be issued from time to time under the Indenture subsequent to June 15, 2026 (the “Additional Notes”) as provided in Section 2.1(a) of the Indenture. The Initial Notes and the Additional Notes
shall be considered collectively as a single class for all purposes of the Indenture; provided that the Additional Notes will not be issued with the same CUSIP as the existing Notes unless such Additional Notes are fungible with the existing
Notes for U.S. federal income tax purposes. The Indenture imposes certain limitations on the incurrence of indebtedness, the making of restricted payments, the sale of assets, the incurrence of certain liens, the making of payments for consents, the
entering into of agreements that restrict distribution from restricted subsidiaries and the consummation of mergers and consolidations. The Indenture also imposes requirements with respect to the provision of financial information and the provision
of guarantees of the Notes by certain subsidiaries.
5. Guarantees
From and after the Issue Date, to guarantee the due and punctual payment of the principal, premium, if any, interest (including post-filing or
post-petition interest in any proceeding under Bankruptcy Law) on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Notes and the Indenture, each Guarantor will unconditionally guarantee (and future guarantors, jointly and severally with the Guarantors, will fully and unconditionally Guarantee) such obligations on a senior
basis pursuant to the terms of the Indenture.
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6. Redemption
(a) At any time prior to June 15, 2029, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor
more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as a percentage of the principal amount of the Notes to be
redeemed) equal to 100.000% plus the relevant Applicable Premium as of, and accrued and unpaid interest, if any, to but excluding the date of redemption (the “Redemption Date”), subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date.
(b) At any time and from time to time prior to June 15,
2029, the Company may on one or more occasions, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40.0% of
the principal amount of Notes issued under the Indenture (together with Additional Notes) at a redemption price (expressed as a percentage of the principal amount of Notes to be redeemed) equal to 109.000%, plus accrued and unpaid interest, if any,
to but excluding, the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date, with the Net Cash Proceeds received by the Company of
one or more Equity Offerings of the Company; provided that not less than 40.0% of the original principal amount of the then-outstanding Notes issued under the Indenture remains outstanding immediately after the occurrence of each such
redemption (excluding Notes held by the Company or any of its Restricted Subsidiaries), unless all such Notes are redeemed substantially concurrently; provided further that each such redemption occurs not later than 180 days after the date of
closing of the related Equity Offering. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6 of the Indenture.
(c) Further, prior to June 15, 2029, the Company may, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the
Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem the Notes issued under Indenture (including any Additional Notes) upon the consummation of a Change of Control at a redemption price equal to
103.000% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
(d)
Except pursuant to clauses (a), (b) and (c) of this paragraph 6, the Notes will not be redeemable at the Company’s option prior to June 15, 2029.
(e) At any time and from time to time on or after June 15, 2029, the Company may redeem the Notes, in whole or in part, upon not less than
10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register at the redemption prices (expressed as percentages of the principal amount of the Notes
to be redeemed) set forth in the table below, plus accrued and unpaid interest thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest
due on the relevant interest payment date, if redeemed during the twelve-month period beginning on June 15 of each of the years indicated in the table below:
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Year
Percentage
2029
104.500
%
2030
102.250
%
2031 and thereafter
100.000
%
(f) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of
Control Offer or Asset Disposition Offer, if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making
such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party shall have the right upon not less than 10 nor more than 60 days’ prior notice,
with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, given not more than 30 days following such purchase date to redeem all Notes that remain outstanding following such purchase at a
redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to but
not including, the date of such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the outstanding Notes have validly tendered and not validly withdrawn such Notes in a tender offer, including a
Change of Control Offer or Asset Disposition Offer, Notes owned by the Company or its Affiliates or by funds controlled or managed by any Affiliate of the Company, or any successor thereof, shall be deemed to be outstanding for the purposes of such
tender offer.
(g) Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or
portions thereof called for redemption on the applicable Redemption Date.
(h) Any redemption pursuant to this paragraph 6 shall be made
pursuant to the provisions of Section 5.1 through 5.6 of the Indenture.
The Company is not required to
make mandatory redemption or sinking fund payments with respect to the Notes.
7. Reserved
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8. Repurchase Provisions
If a Change of Control occurs, unless a third party makes a Change of Control Offer or the Company has previously or substantially concurrently
therewith delivered a redemption notice with respect to all of the outstanding Notes, each Holder will have the right to require the Issuer to repurchase from each Holder all or any part (equal to a minimum denomination of $1.00 or in integral
multiples of $1.00 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101.000% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to but excluding the date of repurchase; provided
that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business on such record date will receive the interest due
on the repurchase date, as provided in, and subject to the terms of, the Indenture.
Upon certain Asset Dispositions, the Issuer may be
required to use the Excess Proceeds from such Asset Dispositions to offer to purchase Notes and, at the Issuer’s option, other First Lien Obligations out of the Excess Proceeds in accordance with the procedures set forth in
Section 3.5 and in Article V of the Indenture.
9. Denominations; Transfer; Exchange
The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of $1.00 and any integral multiple of
$1.00 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay a sum sufficient to cover
any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning (1) fifteen (15) calendar days before the mailing of a notice of an offer to
repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) fifteen (15) calendar days before an Interest Payment Date and ending on such Interest Payment Date or (B) called for redemption, except the
unredeemed portion of any Note being redeemed in part.
10. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the
payment of principal, premium, if any, interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its written request unless an abandoned property law designates another Person to receive such
money. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment as general creditors unless an abandoned property law designates another person for payment.
12. Discharge and Defeasance
Subject to
certain exceptions and conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture and have Liens, if any, on the Collateral securing the Notes released if the Issuer
deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any and interest on the Notes to redemption or maturity, as the case may be.
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13. Amendment, Supplement, Waiver
Subject to certain exceptions contained in the Indenture, the Note Documents may be amended, or a Default thereunder may be waived, with the
consent of the Holders of a majority in aggregate principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Issuer, the Guarantors, the Trustee and the Notes Collateral Agent, as applicable, may amend or
supplement the Note Documents as provided in the Indenture.
14. Defaults and Remedies
If any Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer or
certain Guarantors) occurs and is continuing, the Trustee by written notice to the Issuer, or the Holders of at least 30.0% in principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of
and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest, will be due and payable immediately. If a bankruptcy, insolvency or reorganization of the
Issuer or a Significant Subsidiary (or any group of Restricted Subsidiaries, that taken together as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries, would constitute a Significant Subsidiary)
occurs and is continuing, the principal of and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of at least 30.0% in aggregate principal amount of the outstanding Notes may rescind any acceleration with respect to the Notes and its consequences. A notice of Default may not be given with respect to any action taken,
and reported publicly or to Holders, more than two years prior to such notice of Default.
Any Noteholder Direction provided by any one or
more Directing Holders must be accompanied by a Position Representation, which representation, in the case of a Noteholder Direction relating to the 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 make a Verification Covenant. In any case in which the Holder is
DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee and DTC shall be entitled to conclusively rely on such Position
Representation and Verification Covenant in delivering any direction to the Trustee and the Notes Collateral Agent, as applicable.
If,
following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company 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 provides to the Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that the Company has initiated litigation in a court of competent jurisdiction seeking a determination that such
Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Default, Event of Default or acceleration (or notice thereof) 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 Default or Event of Default shall be automatically reinstituted and any remedy stayed pending a Final Decision. Once such Officer’s Certificate has
been provided to the Trustee, the Trustee shall take no further action pursuant to the related
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Noteholder Direction until it has actual knowledge of a Final Decision. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company provides to the
Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the
cure period with respect to any Default or 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 Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such 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, with the effect that such Default or Event of Default shall be deemed never to have occurred,
acceleration voided and neither the Trustee nor the Notes Collateral Agent shall be deemed to have received such Noteholder Direction or any notice of such Default or Event of Default.
Notwithstanding anything in the preceding two paragraphs, any Noteholder Direction delivered to the Trustee and the Notes Collateral Agent, as
applicable, during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the preceding two paragraphs.
15. Security
The Notes and the Note
Guarantees will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Notes Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold a security interest in the
Collateral for its benefit and the benefit of the Holders of the Notes, in each case pursuant to the Notes Collateral Documents. Each Holder, by accepting this Note, consents and agrees to the terms of the Notes Collateral Documents (including the
provisions providing for the foreclosure and release of Collateral), each as may be in effect or may be amended from time to time in accordance with their terms and the Indenture, and authorizes and directs each of the Trustee and the Notes
Collateral Agent, as applicable, to enter into the Notes Collateral Documents on the Issue Date (or thereafter, in accordance with the terms of the Indenture), and to perform its obligations and exercise its rights thereunder in accordance
therewith.
16. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. In addition, the Trustee shall be permitted to engage in transactions with the Issuer and its Affiliates and
Subsidiaries.
17. No Recourse Against Others
No director, officer, employee, incorporator or shareholder of the Issuer or any of its Subsidiaries or Affiliates, as such (other than the
Issuer and the Guarantors), shall have any liability for any obligations of the Issuer or the Guarantors under the Note Documents or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting
a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that
such a waiver is against public policy.
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18. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
20. CUSIP and ISIN Numbers
The Issuer has
caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or purchase 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 or purchase and reliance may be placed only on the other identification numbers placed thereon.
21. Governing Law
This Note shall be
governed by, and construed in accordance with, the laws of the State of New York.
The Issuer will furnish to any Holder upon written
request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Accendra Health, Inc.
4435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Email: investor.relations@accendra.com
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign
and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
Signature Guarantee:
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
The
undersigned hereby certifies that it ☐ is / ☐ is not an Affiliate of the Issuer and that, to its knowledge, the proposed transferee ☐ is / ☐ is not an Affiliate of the Issuer.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of
the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
(1)
☐
acquired for the undersigned’s own account, without transfer; or
(2)
☐
transferred to the Issuer; or
(3)
☐
transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or
(4)
☐
transferred pursuant to an effective registration statement under the Securities Act; or
(5)
☐
transferred pursuant to and in compliance with Regulation S under the Securities Act; or
(6)
☐
transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended.
A-12
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5) or (6) is checked, the Issuer may require, prior to registering any such transfer of the Notes, in its sole
discretion, such legal opinions, certifications and other information as the Issuer may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements
of the Securities Act of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
Signature
Signature Guarantee:
(Signature must be guaranteed)
Signature
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated:
[TO BE ATTACHED TO GLOBAL NOTES]
A-13
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES
The following increases or decreases 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 Notes
Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
Section 3.5 ☐ Section 3.9 ☐
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, state
the amount in principal amount (must be in minimum denominations of $1.00 or an integral multiple of $1.00 in excess thereof): $___________________________________ and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased):
_________________.
Date: __________ Your Signature
_____________________________________________________
(Sign
exactly as your name appears on the other side of the Note)
Signature Guarantee:
(Signature must be guaranteed)
The signature(s) should be
guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule
17Ad-15.
EXHIBIT B
Form of Supplemental Indenture to Add Guarantors
[ ] SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of [ ], by and among the parties that are signatories
hereto as Guarantors (the “Guaranteeing Entities” and each a “Guaranteeing Entity”), Accendra Health, Inc., as Issuer, and Regions Bank, a national banking association, as Trustee and Notes Collateral Agent
under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, each of Accendra Health, Inc., the Guarantors named therein and the Trustee and Notes Collateral Agent have heretofore executed and
delivered an indenture dated as of June 15, 2026 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of $539,249,947 of 9.000% Senior Secured
First Lien Notes due 2032 of the Issuer (the “Notes”);
WHEREAS, the Indenture provides that under certain
circumstances each Guaranteeing Entity shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Guaranteeing Entity shall unconditionally guarantee, on a joint and several basis with the other Guarantors, 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 9.1 of the Indenture, the Issuer, any Guarantor, the Trustee and the Notes Collateral
Agent are authorized to execute and deliver a supplemental indenture to add additional Guarantors, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Entity, the Issuer, the other Guarantors, the Trustee and the Notes Collateral Agent mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals
hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to
any particular Section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
Section 2.1. Agreement to be Bound. Each Guaranteeing Entity hereby becomes a party to the Indenture as a Guarantor and as such
will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
B-1
Section 2.2. Guarantee. Each Guaranteeing Entity agrees, on a joint and several
basis with all the existing Guarantors [and the other Guaranteeing Entities], to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on
a senior basis.
ARTICLE III
MISCELLANEOUS
Section 3.1.
Notices. All notices and other communications to the Guaranteeing Entities shall be given as provided in the Indenture to such Guaranteeing Entities, at their addresses set forth below, with a copy to the Issuer as provided in the Indenture
for notices to the Issuer.
[INSERT ADDRESS]
Section 3.2. Merger and Consolidation. No Guaranteeing Entity shall sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with
Section 4.1(f) of the Indenture.
Section 3.3. Release of Guarantee. This Guarantee shall be
released in accordance with Section 10.2 of the Indenture.
Section 3.4. Parties. Nothing expressed
or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders, the Trustee and the Notes Collateral Agent, any legal or equitable right, remedy or claim under or in respect of this Supplemental
Indenture or the Indenture or any provision herein or therein contained.
Section 3.5. Governing Law. This Supplemental
Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.6.
Severability. In case any provision in this Supplemental Indenture 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 and such
provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.7. Benefits
Acknowledged. Each Guaranteeing Entity’s Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Entity 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.
Section 3.8. 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 of
Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
B-2
Section 3.9. The Trustee and the Notes Collateral Agent. Neither Trustee nor the
Notes Collateral Agent makes any representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
Section 3.10. Counterparts. The parties hereto 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.
The exchange of copies of this Indenture and of signature
pages by facsimile, PDF or other electronic transmission (including a digital signature provided by DocuSign) 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, PDF or other electronic methods shall be deemed to be their original signatures for all purposes. Unless otherwise provided in this Indenture or in any Note, the
words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the
transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in
Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything to the contrary set forth
herein, neither the Trustee nor the Notes Collateral Agent is under any obligation to agree to accept electronic signatures in any form or format unless expressly agreed to by the Trustee or the Notes Collateral Agent pursuant to procedures approved
by the Trustee or the Notes Collateral Agent, as applicable.
Section 3.11. Execution and Delivery. Each Guaranteeing Entity
agrees that its Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Guarantee.
Section 3.12. Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of
reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
B-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
[GUARANTEEING ENTITY],
as a Guarantor
By:
Name:
Title:
ACCENDRA HEALTH, INC.
By:
Name:
Title:
REGIONS BANK,
as Trustee and Notes Collateral Agent
By:
Name:
Title:
EX-4.3
EX-4.3
Filename: d100115dex43.htm · Sequence: 3
EX-4.3
Exhibit 4.3
ACCENDRA HEALTH, INC.,
the
GUARANTORS party hereto from time to time
AND
REGIONS BANK,
as Trustee and
Notes Collateral Agent
9.750% Senior Secured Second Lien Notes due 2033
INDENTURE
Dated as of
June 15, 2026
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1
Definitions
1
Section 1.2
Other Definitions
72
Section 1.3
[Reserved]
74
Section 1.4
Rules of Construction
74
ARTICLE II
THE NOTES
Section 2.1
Form, Dating and Terms
77
Section 2.2
Execution and Authentication
84
Section 2.3
Registrar and Paying Agent
85
Section 2.4
Paying Agent to Hold Money in Trust
85
Section 2.5
Holder Lists
86
Section 2.6
Transfer and Exchange
86
Section 2.7
[Reserved]
89
Section 2.8
[Reserved]
89
Section 2.9
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
89
Section 2.10
[Reserved]
91
Section 2.11
Mutilated, Destroyed, Lost or Stolen Notes
91
Section 2.12
Outstanding Notes
91
Section 2.13
Temporary Notes
92
Section 2.14
Cancellation
92
Section 2.15
Payment of Interest; Defaulted Interest
93
Section 2.16
CUSIP and ISIN Numbers
94
ARTICLE III
COVENANTS
Section 3.1
Payment of Notes
94
Section 3.2
Limitation on Indebtedness
94
Section 3.3
Limitation on Restricted Payments
103
Section 3.4
Limitation on Restrictions on Distributions from Restricted Subsidiaries
112
Section 3.5
Limitation on Sales of Assets and Subsidiary Stock
115
Section 3.6
Limitation on Liens
119
Section 3.7
Additional Guarantees
120
Section 3.8
Limitation on Affiliate Transactions
121
Section 3.9
Change of Control
125
Section 3.10
Reports
127
Section 3.11
[Reserved]
130
i
Section 3.12
Maintenance of Office or Agency
130
Section 3.13
[Reserved]
131
Section 3.14
[Reserved]
131
Section 3.15
[Reserved]
131
Section 3.16
Compliance Certificate
131
Section 3.17
Further Instruments and Acts
131
Section 3.18
Limitations on Dispositions of Material Collateral
131
Section 3.19
Statement by Officers as to Default
132
Section 3.20
Designation of Restricted and Unrestricted Subsidiaries
132
Section 3.21
Suspension of Certain Covenants on Achievement of Investment Grade Status
132
Section 3.22
Liability Management Transactions
134
Section 3.23
After-Acquired Collateral
134
Section 3.24
Further Assurances
134
ARTICLE IV
SUCCESSOR COMPANY; SUCCESSOR PERSON
Section 4.1
Merger, Amalgamation and Consolidation
135
ARTICLE V
REDEMPTION OF SECURITIES
Section 5.1
Notices to Trustee
137
Section 5.2
Selection of Notes to Be Redeemed or Purchased
138
Section 5.3
Notice of Redemption
138
Section 5.4
[Reserved]
139
Section 5.5
Deposit of Redemption or Purchase Price
139
Section 5.6
Notes Redeemed or Purchased in Part
140
Section 5.7
Optional Redemption
140
Section 5.8
Mandatory Redemption
142
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1
Events of Default
142
Section 6.2
Acceleration
147
Section 6.3
Other Remedies
148
Section 6.4
Waiver of Past Defaults
148
Section 6.5
Control by Majority
148
Section 6.6
Limitation on Suits
149
Section 6.7
Rights of Holders to Receive Payment
149
Section 6.8
Collection Suit by Trustee
149
Section 6.9
Trustee May File Proofs of Claim
150
Section 6.10
Priorities
150
Section 6.11
Undertaking for Costs
150
ii
ARTICLE VII
TRUSTEE
Section 7.1
Duties of Trustee
151
Section 7.2
Rights of Trustee
152
Section 7.3
Individual Rights of Trustee
154
Section 7.4
Trustee’s Disclaimer
155
Section 7.5
Notice of Defaults
155
Section 7.6
Monies to Be Held in Trust
155
Section 7.7
Compensation and Indemnity
155
Section 7.8
Replacement of Trustee
156
Section 7.9
Successor Trustee or Notes Collateral Agent by Merger
157
Section 7.10
Eligibility; Disqualification
157
Section 7.11
Notes Collateral Documents
158
Section 7.12
Trustee’s Application for Instruction from the Issuer
158
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1
Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance
159
Section 8.2
Legal Defeasance and Discharge
159
Section 8.3
Covenant Defeasance
159
Section 8.4
Conditions to Legal or Covenant Defeasance
160
Section 8.5
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
161
Section 8.6
Repayment to the Issuer
162
Section 8.7
Reinstatement
162
ARTICLE IX
AMENDMENTS
Section 9.1
Without Consent of Holders
163
Section 9.2
With Consent of Holders
165
Section 9.3
[Reserved]
167
Section 9.4
Revocation and Effect of Consents and Waivers
167
Section 9.5
Notation on or Exchange of Notes
167
Section 9.6
Trustee and the Notes Collateral Agent to Sign Amendments
167
ARTICLE X
GUARANTEE
Section 10.1
Guarantee
168
Section 10.2
Limitation on Liability; Termination, Release and Discharge
170
Section 10.3
Right of Contribution
171
Section 10.4
No Subrogation
171
iii
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1
Satisfaction and Discharge
172
Section 11.2
Application of Trust Money
173
ARTICLE XII
SECURITY
Section 12.1
Notes Collateral Documents
173
Section 12.2
Release of Collateral
175
Section 12.3
Suits to Protect the Collateral
176
Section 12.4
Authorization of Receipt of Funds by the Trustee Under the Notes Collateral Documents
177
Section 12.5
Purchaser Protected
177
Section 12.6
Powers Exercisable by Receiver or Trustee
177
Section 12.7
Notes Collateral Agent
177
ARTICLE XIII
MISCELLANEOUS
Section 13.1
Notices
183
Section 13.2
Certificate and Opinion as to Conditions Precedent
184
Section 13.3
Statements Required in Certificate or Opinion
184
Section 13.4
When Notes Disregarded
185
Section 13.5
Rules by Trustee, Paying Agent and Registrar
185
Section 13.6
Legal Holidays
185
Section 13.7
Governing Law
185
Section 13.8
Jurisdiction
185
Section 13.9
Waivers of Jury Trial
186
Section 13.10
USA PATRIOT Act
186
Section 13.11
No Recourse Against Others
186
Section 13.12
Successors
186
Section 13.13
Counterparts; Electronic Signatures
186
Section 13.14
Table of Contents; Headings
187
Section 13.15
Force Majeure
187
Section 13.16
Severability
187
Section 13.17
Intercreditor Agreements
187
Section 13.18
Waiver of Immunities
188
Section 13.19
Judgment Currency
188
EXHIBIT A
Form of Global Restricted Note
EXHIBIT B
Form of Supplemental Indenture to Add Guarantors
iv
INDENTURE dated as of June 15, 2026, by and between ACCENDRA HEALTH, INC. (the
“Issuer” or the “Company”), a Virginia corporation, each of the Guarantors (as defined herein) listed on the signature pages hereto, and REGIONS BANK, a banking institution organized and existing under the laws
of the State of Alabama, as Trustee and Notes Collateral Agent.
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of (i) its 9.750% Senior
Secured Second Lien Notes due 2033 issued on (x) the date hereof in an aggregate principal amount of $697,970,754 and (y) pursuant to the Exchange Offers on the Exchange Offer Final Settlement Date in an aggregate principal amount of up to
$3,900,270 (the “Initial Notes”) and (ii) any additional Notes (“Additional Notes” and, together with the Initial Notes, the “Notes”) that may be issued after the Issue Date;
WHEREAS, on the Issue Date, the Notes will be guaranteed on a senior basis by each Initial Guarantor (as defined herein) pursuant to the terms
of this Indenture;
WHEREAS, the Notes Obligations will be secured by the Collateral (as defined herein);
WHEREAS, all things necessary (i) to make the Notes, when executed and duly issued by the Issuer and authenticated and delivered
hereunder, the valid obligations of the Issuer, and (ii) to make this Indenture a valid agreement of the Issuer and the Guarantors have been done; and
NOW, THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2029 Notes” means the Company’s 4.500% Senior Notes due 2029 issued under the 2029 Notes Indenture.
“2029 Notes Indenture” means the indenture governing the 2029 Notes, dated as of March 10, 2021, as amended, among the
Company, the guarantors party thereto from time to time and Regions Bank, as trustee.
“2030 Notes” means the
Company’s 6.625% Senior Notes due 2030 issued under the 2030 Notes Indenture.
“2030 Notes Indenture” means the
indenture governing the 2030 Notes, dated as of March 29, 2022, as amended, among the Company, the guarantors party thereto from time to time and Regions Bank, as trustee.
“Accendra Executive Deferred Compensation Trust” means Accendra Health Inc. Executive Deferred Compensation Trust and its
successors and assigns.
1
“Accendra Health Foundation” means Accendra Health Foundation and its
successors and assigns.
“Acquired Indebtedness” means with respect to any Person (x) Indebtedness of any other
Person or any of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary or merges or amalgamates with or into or consolidates or otherwise combines with the Company or any Restricted Subsidiary and
(y) Indebtedness secured by a Lien encumbering any asset acquired by such Person. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (x) of the preceding sentence, on the date such Person becomes a
Restricted Subsidiary or on the date of the relevant merger, amalgamation, consolidation, acquisition or other combination.
“Additional Assets” means:
(1)
any property or assets (other than Capital Stock) used or to be used by the Company, a Restricted Subsidiary or
otherwise useful in a Similar Business (it being understood that capital expenditures on property or assets already used in a Similar Business or to replace any property or assets that are the subject of such Asset Disposition shall be deemed an
investment in Additional Assets);
(2)
the Capital Stock of a Person that is engaged in a Similar Business and becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or a Restricted Subsidiary; or
(3)
Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary.
“Additional First Lien Obligations” means any Indebtedness having Senior Lien Priority relative to
the Notes with respect to all or a portion of the Collateral whose Collateral Agent has become a party (whether by joinder or otherwise) to the First Lien Intercreditor Agreement.
“Additional First Lien Secured Parties” means the holders of any other Series of Additional First Lien Obligations and any
Collateral Agent with respect thereof and the beneficiaries of the indemnification obligations thereunder.
“Additional Junior
Lien Obligations” means any Indebtedness having Junior Lien Priority relative to the Notes with respect to all or a portion of the Collateral whose Collateral Agent has become a party (whether by joinder or otherwise) to the Junior Lien
Intercreditor Agreement.
“Additional Junior Lien Secured Parties” means the holders of any other Series of Additional
Junior Lien Obligations and any Collateral Agent with respect thereof and the beneficiaries of the indemnification obligations thereunder.
“Additional Notes” has the meaning ascribed to it in the recitals of this Indenture.
“Additional Second Lien Obligations” means any Indebtedness having Pari Passu Lien Priority relative to the Notes with
respect to all or a portion of the Collateral whose Collateral Agent has become a party (whether by joinder or otherwise) to the Second Lien Intercreditor Agreement.
2
“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. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Alternative Currency” means any currency (other than U.S. dollars) that is a lawful currency (other than U.S. dollars)
that is readily available and freely transferable and convertible into U.S. dollars (as determined in good faith by the Company).
“Applicable Premium” means the greater of (A) 1.0% of the principal amount of such Note and (B) on any Redemption Date
(as defined herein), the excess (to the extent positive) of:
(a)
the present value at such Redemption Date of (i) the redemption price of such Note at June 15, 2029
(such redemption price (expressed in percentage of principal amount) being set forth in the table under Section 5.7(e) (excluding accrued but unpaid interest, if any)), plus (ii) all required interest payments due on
such Note to and including such date set forth in clause (i) (excluding accrued but unpaid interest, if any), computed upon the Redemption Date using a discount rate equal to the Applicable Treasury Rate at such Redemption Date plus 50 basis points;
over
(b)
the outstanding principal amount of such Note;
in each case, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate. The Trustee shall have no duty to
calculate or verify the calculations of the Applicable Premium.
“Applicable Treasury Rate” means the weekly average
rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two Business Days prior to the Redemption Date) of the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as compiled and published in the Federal Reserve Statistical Release H.15 with respect to each applicable day during such week (or, if such statistical release is not so
published or available, any publicly available source of similar market data selected by the Company in good faith)) most nearly equal to the period from the Redemption Date to June 15, 2029; provided, however, that if the period from the
Redemption Date to June 15, 2029 is not equal to the constant maturity of a United States Treasury security for which such 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 Redemption Date to such applicable date 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.
3
“Asset Disposition” means:
(a)
the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of
related transactions, of property or assets (including by way of a Sale and Leaseback Transaction) of the Company or any of its Restricted Subsidiaries (in each case other than Capital Stock of the Company) (each referred to in this definition as a
“disposition”); or
(b)
the issuance or sale of Capital Stock of any Restricted Subsidiary (other than Preferred Stock or Disqualified
Stock of Restricted Subsidiaries issued in compliance with Section 3.2 hereof or directors’ qualifying shares and shares issued to foreign nationals as required under applicable law), whether in a single transaction
or a series of related transactions;
in each case, other than:
(1)
a disposition by the Company or a Restricted Subsidiary to the Company or a Restricted Subsidiary, including
pursuant to any Intercompany License Agreement; provided that that if the transferor of such property is a Note Party, (i) the transferee thereof is another Note Party, (ii) to the extent such transaction constitutes an Investment,
such transaction is a Permitted Investment or an Investment permitted under Section 3.3, or (iii) such disposition shall consist of the transfer of Capital Stock in or Indebtedness of any Foreign Subsidiary to any
other Foreign Subsidiary; provided that, sales, transfers or other dispositions made pursuant to this clause (1) may not be made in connection with any Liability Management Transaction;
(2)
a disposition of cash, Cash Equivalents or Investment Grade Securities, including any marketable securities
portfolio owned by the Company and its Subsidiaries on the Issue Date;
(3)
a disposition of inventory, goods or other assets (including Settlement Assets) in the ordinary course of
business or consistent with past practice or held for sale or no longer used in the ordinary course of business, including any disposition of disposed, abandoned or discontinued operations;
(4)
a disposition of obsolete, worn out, uneconomic, damaged or surplus property, equipment or other assets or
property, equipment or other assets that are no longer economically practical or commercially desirable to maintain or used or useful in the business of the Company and its Restricted Subsidiaries whether now or hereafter owned or leased or acquired
in connection with an acquisition or used or useful in the conduct of the business of the Company and its Restricted Subsidiaries (including by ceasing to enforce, allowing the lapse, abandonment or invalidation of or discontinuing the use or
maintenance of or putting into the public domain any intellectual property that is, in the reasonable judgment of the Company or the Restricted Subsidiaries, no longer used or useful, or economically practicable to maintain, or in respect of which
the Company or any Restricted Subsidiary determines in its reasonable business judgment that such action or inaction is desirable);
4
(5)
transactions permitted under Section 4.1 hereof or a transaction that constitutes a
Change of Control;
(6)
an issuance of Capital Stock by a Restricted Subsidiary to the Company or to another Restricted Subsidiary or
as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors;
(7)
any dispositions of Capital Stock, properties or assets in a single transaction or series of related
transactions with a fair market value (as determined in good faith by the Company) of less than the greater of $35 million and 10.0% of LTM EBITDA;
(8)
any Restricted Payment that is permitted to be made, and is made, under Section 3.3
and the making of any Permitted Payment or Permitted Investment or, solely for purposes of Section 3.5(a)(3), asset sales, the proceeds of which are used to make such Restricted Payments or Permitted Investments;
(9)
dispositions in connection with Permitted Liens, Permitted Intercompany Activities, and Permitted Tax
Restructuring;
(10)
dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary
course of business or consistent with past practice or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(11)
conveyances, sales, transfers, licenses, sub-licenses, cross-licenses
or other dispositions of intellectual property, software or other general intangibles and licenses, sub-licenses, cross-licenses, leases or subleases of other property, in each case, in the ordinary course of
business or consistent with past practice or pursuant to a research or development agreement in which the counterparty to such agreement receives a license in the intellectual property or software that results from such agreement;
(12)
the lease, assignment, license, sub-lease or cross-license of any real
or personal property in the ordinary course of business;
(13)
foreclosure, condemnation, expropriation, forced disposition or any similar action with respect to any property
or other assets or the granting of Liens not prohibited by this Indenture;
(14)
the sale, discount or other disposition (with or without recourse, and on customary or commercially reasonable
terms and for credit management purposes) of inventory, accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts receivable for notes receivable;
5
(15)
any issuance or sale of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary or
any other disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or any Immaterial Subsidiary;
(16)
any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with
or to a Person (other than the Company or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such
acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(17)
(i) dispositions of property to the extent that such property is exchanged for credit against the purchase
price of similar replacement property that is promptly purchased, (ii) dispositions of property to the extent that the proceeds of such disposition are promptly applied to the purchase price of such replacement property (which replacement
property is actually promptly purchased), and (iii) to the extent allowable under Section 1031 of the Code or comparable law or regulation, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
(18)
any disposition of Securitization Assets or Receivables Assets, or participations therein, in connection with
any Qualified Securitization Financing or Receivables Facility not prohibited by this Indenture, or the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or consistent
with past practice;
(19)
so long as no Event of Default has occurred and is continuing (or would result therefrom), any financing
transaction with respect to property constructed, acquired, leased, renewed, relocated, expanded, maintained, upgraded replaced, repaired or improved (including any reconstruction, refurbishment, renovation and/or development of real property) by
the Company or any Restricted Subsidiary after the Issue Date, including Sale and Leaseback Transactions and asset securitizations, not prohibited by this Indenture, with a fair market value (as determined in good faith by the Company) of less than
the greater of $35 million and 10.0% of LTM EBITDA;
(20)
sales, transfers or other dispositions of Investments in joint ventures or similar entities to the extent
required by, or made pursuant to customary buy/sell arrangements between, the parties to such joint venture set forth in joint venture arrangements and similar binding arrangements;
(21)
any surrender or waiver of contractual rights or the settlement, release, surrender or waiver of contractual,
tort, litigation or other claims of any kind;
(22)
the settlement or unwinding of any Cash Management Services or Hedging Obligations;
6
(23)
[reserved];
(24)
transfers of property or assets subject to Casualty Events upon receipt of the net proceeds of such Casualty
Event; provided that any Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of such Casualty Event shall be deemed to be Net Available Cash of an Asset Disposition, and such Net Available Cash shall be
applied in accordance with Section 3.5;
(25)
any sale of property or assets, if the acquisition of such property or assets was financed with Excluded
Contributions and the Net Cash Proceeds of such sale are used to make a Restricted Payment pursuant to Section 3.3(b)(12)(b);
(26)
the disposition of any assets (including Capital Stock) (i) acquired in a transaction after the Issue
Date, which assets are not useful in the core or principal business of the Company and its Restricted Subsidiaries, or (ii) made in connection with the approval of any applicable antitrust authority or other regulatory approval or otherwise
necessary or advisable in the reasonable determination of the Company to consummate any acquisition;
(27)
any sale, transfer or other disposition to affect the formation of any Subsidiary that is a Delaware Divided
LLC; provided that upon formation of such Delaware Divided LLC, such Delaware Divided LLC shall be a Guarantor if the divided entity was a Guarantor and, otherwise, a Restricted Subsidiary; provided further that any such assets
or properties so sold, transferred or otherwise disposed shall be held by such Guarantor or Restricted Subsidiary, as applicable, the Company or another Guarantor or Restricted Subsidiary, as applicable; and
(28)
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 Company or any Restricted Subsidiary to such Person.
In the event that a transaction (or any portion thereof) meets the criteria of a permitted Asset Disposition and would also be a Permitted
Investment or an Investment permitted under Section 3.3, the Company, in its sole discretion, will be entitled to divide and classify such transaction (or a portion thereof) as an Asset Disposition and/or one or more of the
types of Permitted Investments or Investments permitted under Section 3.3.
“Associate” means
(i) any Person engaged in a Similar Business of which the Company or its Restricted Subsidiaries are the legal and beneficial owners of between 20% and 50% of all outstanding Voting Stock and (ii) any joint venture entered into by the
Company or any Restricted Subsidiary of the Company.
“Bankruptcy Law” means Title 11 of the United States Code or
similar federal or state law for the relief of debtors.
7
“Board of Directors” means (i) with respect to the Company or any
corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (ii) with respect to any partnership, the board of directors or other governing body of the general partner, as
applicable, of the partnership or any duly authorized committee thereof; (iii) with respect to a limited liability company, the managing member or members or any duly authorized controlling committee thereof; and (iv) with respect to any
other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or
approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval). Unless
the context requires otherwise, Board of Directors means the Board of Directors of the Company.
“Business Day” means
each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or in the jurisdiction of the place of payment are authorized or required by law to close. 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 or performance shall extend to the immediately succeeding Business Day and such extension
of time shall not be reflected in computing interest or fees, as the case may be.
“Business Successor” means
(i) any former Subsidiary of the Company and (ii) any Person that, after the Issue Date, has acquired, merged or consolidated with a Subsidiary of the Company (that results in such Subsidiary ceasing to be a Subsidiary of the Company), or
acquired (in one transaction or a series of transactions) all or substantially all of the property and assets or business of a Subsidiary or assets constituting a business unit, line of business or division of a Subsidiary of the Company.
“Capital Stock” of any Person means any and all shares of, rights to purchase or acquire, warrants, options or depositary
receipts for, or other equivalents of or partnership or other interests in (however designated), equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into or exchangeable for such equity.
“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 Company operating for the purpose of (a) insuring the businesses, operations or properties owned or operated by any Parent Entity, the Company or any of its Subsidiaries, including
their future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members), 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 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.
8
“Cash Equivalents” means:
(1)
(a) U.S. dollars, Canadian dollars, Swiss Francs, United Kingdom pounds, Euro or any national currency of any
member state of the European Union on the Issue Date; or (b) any other foreign currency held by the Company and the Restricted Subsidiaries in the ordinary course of business;
(2)
securities issued or directly and fully Guaranteed or insured by the United States, Canadian, Swiss or United
Kingdom governments, a member state of the European Union or, in each case, or any agency or instrumentality thereof (provided that the full faith and credit of such country or such member state is pledged in support thereof), having
maturities of not more than two years from the date of acquisition;
(3)
certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits, or bankers’
acceptances having maturities of not more than one year from the date of acquisition thereof issued by any lender or by any bank or trust company (a) whose commercial paper is rated at least
“A-2” or the equivalent thereof by S&P or at least “P-2” or the equivalent thereof by Moody’s (or if at the time neither is issuing
comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization) or (b) (in the event that the bank or trust company does not have commercial paper which is rated) having combined capital and surplus in
excess of $100 million;
(4)
repurchase obligations for underlying securities of the types described in clauses (2), (3) and
(7) entered into with any bank meeting the qualifications specified in clause (3) above;
(5)
securities with maturities of one year or less from the date of acquisition backed by standby letters of credit
issued by any Person referenced in clause (3) above;
(6)
commercial paper and variable or fixed rate notes issued by a bank meeting the qualifications specified in
clause (3) above (or by the parent company thereof) maturing within one year after the date of creation thereof or any commercial paper and variable or fixed rate note issued by, or guaranteed by a corporation rated at least (A) “A-1” or higher by S&P or “P-1” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of
another Nationally Recognized Statistical Rating Organization selected by the Company) maturing within two years after the date of creation thereof or (B) “A-2” or higher by S&P or “P-2” or higher by Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the
Company) maturing within 24 months after the date of creation thereof or, in each case, if no rating is available in respect of the commercial paper or fixed rate notes, the issue of which has an equivalent rating in respect of its long-term debt;
9
(7)
marketable short-term money market and similar securities having a rating of at least “P-2” or “A-2” from either S&P or Moody’s, respectively (or, if at the time, neither is issuing comparable ratings, then a comparable rating
of another Nationally Recognized Statistical Rating Organization selected by the Company), and in each case maturing within 24 months after the date of creation or acquisition thereof;
(8)
readily marketable direct obligations issued by any state, province, commonwealth or territory of the United
States of America, Canada, Switzerland, the United Kingdom, any member state of the European Union or any political subdivision, taxing authority or public instrumentality thereof, in each case, having one of the two highest ratings categories
obtainable from either Moody’s or S&P (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not
more than two years from the date of creation or acquisition;
(9)
readily marketable direct obligations issued by any foreign government or any political subdivision, taxing
authority or public instrumentality thereof, in each case, having one of the two highest ratings categories obtainable by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another
Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of not more than two years from the date of acquisition;
(10)
Investments with average maturities of 12 months or less from the date of acquisition in money market funds
rated within the three highest ratings categories by S&P or Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the
Company);
(11)
with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which
such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of
investment therein, (ii) certificates of deposit of, bankers’ acceptance of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief
executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least
“A-2” or the equivalent thereof or from Moody’s is at least “P-2” or the equivalent thereof (any such bank being an “Approved
Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
10
(12)
Indebtedness or Preferred Stock issued by Persons with a rating of “BBB-” or higher from S&P or
“Baa3” or higher from Moody’s (or, if at the time, neither is issuing comparable ratings, then a comparable rating of another Nationally Recognized Statistical Rating Organization selected by the Company) with maturities of 24
months or less from the date of acquisition;
(13)
bills of exchange issued in the United States, Canada, Switzerland, the United Kingdom, a member state of the
European Union or Japan eligible for rediscount at the relevant central bank and accepted by a bank (or any dematerialized equivalent);
(14)
investments in money market funds access to which is provided as part of “sweep” accounts
maintained with any bank meeting the qualifications specified in clause (3) above;
(15)
investments in industrial development revenue bonds that (i)
“re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer and (iii) are supported by a
direct pay letter of credit covering principal and accrued interest that is issued by any bank meeting the qualifications specified in clause (3) above;
(16)
investments in pooled funds or investment accounts consisting of investments in the nature described in the
foregoing clause (15);
(17)
Cash Equivalents or instruments similar to those referred to in clauses (1) through (16) above denominated
in U.S. dollars or any Alternative Currency;
(18)
interests in any investment company, money market, enhanced high yield fund or other investment fund which
invests 90% or more of its assets in instruments of the types specified in clauses (1) through (17) above; and
(19)
for purposes of clause (2) of the definition of “Asset Disposition,” any marketable securities
portfolio owned by the Company and its Subsidiaries on the Issue Date.
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 (1) through (9) and clauses
(11) through (14) 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 (1) through (14) and in this
paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in
clause (1) above, provided that such amounts are converted into any currency listed in clause (1) as promptly as practicable and in any event within 10 Business Days following the receipt of such amounts. For the avoidance of doubt,
any items identified as Cash Equivalents under this definition (other than clause (16) above) will be deemed to be Cash Equivalents for all purposes under this Indenture regardless of the treatment of such items under GAAP.
11
“Cash Management Obligations” means (1) obligations in respect of
any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements, electronic fund transfer, treasury services and cash management services, including controlled disbursement services, working capital lines, lines of
credit, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services, or other cash management arrangements or any automated clearing house arrangements, (2) other obligations in respect of netting or
setting off arrangements, credit, debit or purchase card programs, stored value card and similar arrangements and (3) obligations in respect of any other services related, ancillary or complementary to the foregoing (including any overdraft and
related liabilities arising from treasury, depository, cash pooling arrangements and cash management services, corporate credit and purchasing cards and related programs or any automated clearing house transfers of funds).
“Cash Management Services” means any of the following to the extent not constituting a line of credit (other than an
overnight draft facility that is not in default): automated clearing house transactions, treasury, depository, credit or debit card, purchasing card, stored value card, electronic fund transfer services and/or cash management services, including,
without limitation, controlled disbursement services, overdraft facilities, foreign exchange facilities, deposit and other accounts and merchant services or other cash management arrangements in the ordinary course of business or consistent with
past practice.
“Casualty Event” means any event that gives rise to the receipt by the Company or any Restricted
Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, assets or real property (including any improvements thereon) to replace or repair such equipment, assets or real property.
“CFC” means any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of
the Code.
“Change of Control” means:
(1)
the Company 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) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Issue Date), other than one or more Permitted Holders or a Parent Entity, that
is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 of the Exchange Act as in effect on the Issue Date) of more than 50% of the total
voting power of the Voting Stock of the Company; provided that (x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of
the Voting Stock of the Company unless such Person shall be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity)
and (y) any Voting Stock of which any Permitted Holder is the beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner;
12
(2)
the sale or transfer, in one or a series of related transactions, of all or substantially all of the assets of
the Company and its Restricted Subsidiaries, taken as a whole, to a Person (other than the Company or any of its Restricted Subsidiaries or one or more Permitted Holders); or
(3)
any “person” (as defined in clause (1) above), other than one or more Permitted Holders or any
Parent Entity, is or becomes the “beneficial owner” (as so defined) of more than 50% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that
(x) so long as the Company is a Subsidiary of any Parent Entity, no Person shall be deemed to be or become a beneficial owner of more than 50% of the total voting power of the Voting Stock of the Company unless such Person shall be or become a
beneficial owner of more than 50% of the total voting power of the Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (y) any Voting Stock of which any Permitted Holder is the
beneficial owner shall not in any case be included in any Voting Stock of which any such Person is the beneficial owner.
Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a
Person or group shall not be deemed to beneficially own Voting Stock subject to a stock or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related
thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) if any group includes one or more Permitted Holders, the issued and outstanding Voting Stock of the
Company 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 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 parent entity (or related contractual
rights) unless it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent
entity 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.
“Code” means the United States Internal Revenue Code of 1986,
as amended.
“Collateral” means any and all property of a Note Party subject (or purported to be subject) to a Lien
securing the Notes Obligations, whether now existing or hereafter acquired, other than Excluded Property.
“Collateral
Agent” means (i) in the case of the Revolving Credit Agreement, the Revolving Credit Agreement Collateral Agent, (ii) in the case of the Term Loan Credit Agreement, the Term Loan Credit Agreement Collateral Agent, (iii) in
the case of the Notes, the Notes Collateral Agent, (iv) in the case of the First Lien Notes, the First Lien Notes Collateral Agent, (v) in the case of any other Series of Additional First Lien Obligations that become subject to the First
Lien Intercreditor
13
Agreement after the Issue Date, the collateral agent for such Series that becomes a party (whether by joinder or otherwise) to the First Lien Intercreditor Agreement, (vi) in the case of any
other Series of Additional Junior Lien Obligations that become subject to the Junior Lien Intercreditor Agreement after the Issue Date, the collateral agent for such Series named in the applicable joinder agreement to the Junior Lien Intercreditor
Agreement and (vii) in the case of any other Series of Additional Second Lien Obligations that become subject to the Second Lien Intercreditor Agreement after the Issue Date, the collateral agent for such Series named in the applicable joinder
agreement to the Second Lien Intercreditor Agreement.
“Company” has the meaning assigned to it in the recitals of this
Indenture.
“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 amortization or write-off of (i) intangible assets and non-cash organization
costs, (ii) deferred financing and debt issuance fees, costs and expenses, (iii) capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, media development costs, conversion
costs and contract acquisition costs, the amortization of original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities and (iv) capitalized fees
related to any Qualified Securitization Financing or Receivables Facility, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP and any write down of assets or asset
value carried on the balance sheet.
“Consolidated EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period:
(1)
increased (without duplication) by:
(a)
Fixed Charges of such Person for such period (including
(w) non-cash rent expense, (x) net payments and losses or any obligations on any Hedging Obligations or other derivative instruments, (y) bank, letter of credit and other financing fees and
(z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of “Consolidated Interest Expense” and any non-cash interest expense), to the
extent deducted (and not added back) in computing Consolidated Net Income; plus
(b)
(x) provision for Taxes based on income, profits, revenue or capital, including federal, foreign, state,
provincial, territorial, local, unitary, excise, property, franchise, value added and similar Taxes (such as, but not limited to, Delaware franchise tax, 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, additions to Tax and interest related to such Taxes or arising from Tax examinations) and similar Taxes of
such Person paid or accrued during such period (including in respect of repatriated funds), (y) any distributions made to a Parent Entity with respect to the foregoing and (z) the net tax expense associated with any adjustments made pursuant to
the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
14
(c)
Consolidated Depreciation and Amortization Expense of such Person for such period to the extent deducted (and
not added back) in computing Consolidated Net Income; plus
(d)
any fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to
any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions), Permitted Investment, Restricted Payment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted
to be incurred by this Indenture (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Issue Date), including (i) such fees, expenses or charges (including rating agency fees,
consulting fees and other related expenses and/or letter of credit or similar fees) related to the offering or incurrence of, or ongoing administration of the Notes, the First Lien Notes, the Credit Agreements, any other Credit Facilities, any
Securitization Fees and the Transactions, including Transaction Expenses, and (ii) any amendment, waiver or other modification of the Notes, the First Lien Notes, the Credit Agreements, Receivables Facilities, Securitization Facilities, any
other Credit Facilities, any Securitization Fees, any other Indebtedness or any Equity Offering, in each case, whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(e)
(i) the amount of any restructuring charge, accrual, reserve (and adjustments to existing reserves) or expense,
integration cost, inventory optimization programs or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives and tax restructurings) that is deducted (and not added back) in
such period in computing Consolidated Net Income, including any costs incurred in connection with acquisitions or divestitures after the Issue Date, any severance, retention, signing bonuses, relocation, recruiting and other employee related costs,
costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employment benefit plans (including any settlement of pension liabilities), costs related to entry into new markets (including unused
warehouse space costs) and new product introductions (including labor costs and scrap costs), systems development and establishment costs, operational and reporting systems, technology initiatives, contract termination costs, future lease
commitments and costs related to the opening and closure and/or consolidation of facilities (including severance, rent termination, moving and legal costs) and to exiting lines of business and consulting fees incurred with any of the foregoing and
(ii) fees, costs and expenses associated with acquisition related litigation and settlement thereof; plus
15
(f)
any other non-cash charges, write-downs, expenses, losses or items
reducing Consolidated Net Income for such period including (i) non-cash losses on the sale of assets and any write-offs or write-downs, deferred revenue or impairment charges, (ii) impairment
charges, amortization (or write offs) of financing costs (including debt discount, debt issuance costs and commissions and other fees associated with Indebtedness, including the Notes, the First Lien Notes and the Credit Agreements) of such Person
and its Subsidiaries and/or (iii) the impact of acquisition method accounting adjustment and any non-cash write-up, write-down or
write-off with respect to re-valuing assets and liabilities in connection with the Transactions or any Investment, deferred revenue or any effects of adjustments
resulting from the application of purchase accounting, purchase price accounting (including any step-up in inventory and loss of profit on the acquired inventory) (provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash items in any future period, (A) the Company may elect not to add back such
non-cash charge, expense or loss in the current period and (B) to the extent the Company elects to add back such non-cash charge, the cash payment in respect
thereof in such future period shall be subtracted from Consolidated EBITDA when paid), or other items classified by the Company as special items less other non-cash items of income increasing Consolidated Net
Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period); plus
(g)
the amount of pro forma “run rate” cost savings (including cost savings with respect to salary,
benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions,
other operating improvements (including the entry into material contracts or arrangements), and initiatives and synergies (including, to the extent applicable, from (i) the Transactions, (ii) the effect of new customer contracts or
projects and/or (iii) increased pricing or volume in existing contracts) (it is understood and agreed that “run rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or
expected to be taken, net of the amount of actual benefits realized during such period from such actions) projected by the Company in good faith to be reasonably anticipated to be realizable or a plan for realization shall have been established
within 24 months of the date thereof (including from any actions taken in whole or in part prior to such date), which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost
savings (including cost savings with respect to salary, benefit and other direct savings resulting from workforce reductions and facility,
16
benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions, other operating improvements
and initiatives and synergies had been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions; provided that (i) such costs savings are reasonably
identifiable and factually supportable (in the good faith determination of the Company) and (ii) the aggregate increase to Consolidated EBITDA for any period pursuant to this clause (g) shall not exceed 30.0% of Consolidated EBITDA for
such period (calculated after giving effect to any increase pursuant to this clause (g)); plus
(h)
any costs or expenses incurred by the Company or a Restricted Subsidiary or a Parent Entity pursuant to any
management equity plan, stock option plan, phantom equity plan, profits interests or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or
severance agreement, or any stock subscription or equityholder agreement, and any costs or expenses in connection with the roll-over, acceleration or payout of Capital Stock held by management, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Company or net cash proceeds of an issuance of Capital Stock (other than Disqualified Stock) of the Company; plus
(i)
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
(j)
any net loss included in the Consolidated Net Income attributable to
non-controlling or minority interests pursuant to the application of Accounting Standards Codification Topic 810-10-45 (or any
successor provision or other financial accounting standard having a similar result or effect); plus
(k)
the amount of any non-controlling or minority interest expense
consisting of Subsidiary income attributable to non-controlling or minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(l)
(i) unrealized or realized foreign exchange losses resulting from the impact of foreign currency changes and
(ii) gains and losses due to fluctuations in currency values and related Tax effects determined in accordance with GAAP; plus
17
(m)
with respect to any joint venture, an amount equal to the proportion of those items described in clauses (a),
(b) and (c) above relating to such joint venture corresponding to the Company’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a
Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(n)
the amount of any costs, charges or expenses relating to payments made to stock appreciation or similar rights,
stock option, restricted stock, phantom equity, profits interests or other interests or rights holders of the Company or any of its Subsidiaries or any Parent Entity in connection with, or as a result of, any distribution being made to equityholders
of such Person or any of its Subsidiaries or any Parent Entities, which payments are being made to compensate such holders as though they were equityholders at the time of, and entitled to share in, such distribution; plus
(o)
(i) adjustments of the nature or type contained in the Exchange Offering Memorandum and other adjustments of a
similar nature to the foregoing and (ii) any due diligence quality of earnings report from time to time prepared with respect to the target of an acquisition or Investment by a nationally recognized accounting firm; plus
(p)
losses, charges and expenses related to the pre-opening and opening of
new locations, and start-up period prior to opening, that are operated, or to be operated, by the Company or any Restricted Subsidiary; plus
(q)
rent expense as determined in accordance with GAAP not actually paid in cash during such period (net of rent
expense paid in case during such period over and above rent expense as determined in accordance with GAAP); plus
(r)
losses, charges and expenses related to a new location, plant or facility until the date that is 24 months
after the date of commencement of construction or the date of acquisition thereof, as the case may be; plus
(s)
any non-cash increase in expense resulting from the revaluation of
inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments; plus
(t)
(1) the net increase (which, for the avoidance of doubt, shall not be negative), if any, of the difference
between: (i) the deferred revenue of such Person and its Restricted Subsidiaries, as of the last day of such period (the “Determination Date”) and (ii) the deferred revenue of such Person and its Restricted Subsidiaries as of
the date that is 12 months prior to the Determination Date, and (2) without duplication of any adjustment pursuant to clause (1), the net adjustment for the annualized full-year gross profit contribution from new customer contracts signed
during the 12 months prior to the Determination Date; plus
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(u)
any fees, costs and expenses incurred in connection with the adoption or implementation of Accounting Standards
Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect), and any non-cash losses or charges
resulting from the application of Accounting Standards Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect); plus
(v)
any fees, costs, expenses or charges related to or recorded in cost of sales to recognize cost on a last-in-first-out basis; and
(2)
decreased (without duplication) by extraordinary or other
non-recurring, income tax credits or non-cash income 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 Consolidated EBITDA in any prior period.
Notwithstanding the foregoing or anything to the contrary herein, Consolidated EBITDA for each fiscal quarter following the Issue Date through
the fiscal quarter ended December 31, 2026 shall be deemed to be equal to $86.25 million per fiscal quarter.
“Consolidated First Lien Secured Leverage Ratio” means, as of any date of determination, the ratio of (x) Consolidated
Total Indebtedness secured by a Lien on the Collateral as of such date (other than Indebtedness secured by a Lien with a junior lien priority relative to the First Lien Notes and the First Lien Note Guarantees) to (y) LTM EBITDA.
“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:
(1)
consolidated cash interest expense (including that attributable to Finance Lease Obligations) with respect to
all outstanding Indebtedness of such Person and its Restricted Subsidiaries, including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net payments made (less
net payments received) under Hedging Obligations but excluding, for the avoidance of doubt (i) Securitization Fees, (ii) penalties, additions to Tax and interest relating to Taxes, (iii) annual agency or similar fees paid to the
administrative agents, collateral agents and other agents under any Credit Facility, (iv) any additional interest or liquidated damages owing pursuant to any registration rights obligations, (v) costs associated with obtaining Hedging
Obligations, (vi) accretion or accrual of discounted liabilities other than Indebtedness, (vii) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or purchase
accounting in connection with the Transactions or any acquisition, (viii) amortization, expensing or write-off of deferred financing fees, amendment and consent fees, debt issuance costs, debt discount or
premium, terminated Hedging Obligations and other commissions, fees and expenses, discounted liabilities,
19
original issue discount and any other amounts of non-cash interest and, adjusted to the extent included, to exclude any refunds or similar credits received
in connection with the purchasing or procurement of goods or services under any purchasing card or similar program, (ix) any expensing of bridge, arrangement, structuring, commitment, agency, consent and other financing fees and any other fees
related to the Transactions or any acquisitions after the Issue Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment, make-whole or breakage premium, penalty or cost, (xi) interest expense with respect
to Indebtedness of any direct or indirect parent of such Person resulting from push-down accounting and (xii) any lease, rental or other expense in connection with a Non-Financing Lease Obligations;
less
(2)
consolidated interest income for such period.
For purposes of this definition, interest on a Finance 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 Finance Lease Obligation in accordance with GAAP.
“Consolidated Net Income”
means, with respect to any Person for any period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends; provided, however, that there will not be included in such Consolidated Net Income:
(1)
any net income (loss) of any Person if such Person is not a Restricted Subsidiary (including any net income
(loss) from investments recorded in such Person under the equity method of accounting), except that the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate
amount of cash or Cash Equivalents actually distributed (or to the extent converted into cash or Cash Equivalents) or that (as determined by the Company in its reasonable discretion) could have been distributed by such Person during such period to
the Company or a Restricted Subsidiary as a dividend or other distribution or return on investment;
(2)
solely for the purpose of determining the amount available for Restricted Payments under
Section 3.3(a)(iii)(B) hereof, any net income (loss) of any Restricted Subsidiary (other than the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Restricted Subsidiary, directly or indirectly, to the Company or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or
governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (a) restrictions that have been waived or otherwise 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), and (b) restrictions pursuant to the Credit Agreements, the Notes, this Indenture, the First Lien Notes, the First Lien Notes Indenture or other similar
indebtedness containing
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substantially similar restrictions), except that the Company’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up
to the aggregate amount of cash or Cash Equivalents actually distributed (or to the extent converted, or having the ability to be converted, into cash or Cash Equivalents) or that could have been distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(3)
any gain (or loss) (a) in respect of facilities no longer used or useful in the conduct of the business of
the Company or its Restricted Subsidiaries, abandoned, transferred, closed, disposed or discontinued operations, (b) on disposal, abandonment or discontinuance of disposed, abandoned, transferred, closed or discontinued operations, and
(c) attributable to asset dispositions, abandonments, sales or other dispositions of any asset (including pursuant to any Sale and Leaseback Transaction) or the designation of an Unrestricted Subsidiary other than in the ordinary course of
business;
(4)
(a) any extraordinary, exceptional, unusual or nonrecurring loss, charge or expense, Transaction Expenses,
Public Company Costs, restructuring and duplicative running costs, restructuring charges or reserves (whether or not classified as restructuring expense on the consolidated financial statements), relocation costs,
start-up or initial costs for any project or new production line, division or new line of business, integration and facilities’ or bases’ 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 Company or a Subsidiary or a Parent Entity had
entered into with employees of the Company, a Subsidiary or a Parent Entity, costs relating to pre-opening, opening and conversion costs for facilities, losses, costs or cost inefficiencies related to project
terminations, facility or property disruptions or shutdowns (including due to work stoppages, natural disasters and epidemics), signing, retention and completion bonuses (including management bonus pools), recruiting costs, costs incurred in
connection with any strategic or cost savings initiatives, transition costs, contract terminations, litigation and arbitration fees, costs and charges, expenses in connection with one-time rate changes, costs
incurred with acquisitions, investments and dispositions (including travel and out-of-pocket costs, human resources costs (including relocation bonuses), litigation and
arbitration costs, charges, fees and expenses (including settlements), management transition costs, advertising costs, losses associated with temporary decreases in work volume and expenses related to maintain underutilized personnel) and 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 operating expenses attributable to the
implementation of strategic or cost-savings initiatives, and curtailments or
21
modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments) and
professional, legal, accounting, consulting and other service fees incurred with any of the foregoing and (b) any charge, expense, cost, accrual or reserve of any kind associated with acquisition related litigation and settlements thereof;
(5)
(a) at the election of the Company with respect to any quarterly period, the cumulative effect (including
charges, accruals, expenses and reserves) of a change in law, regulation or accounting principles and changes as a result of the adoption, implementation or modification of accounting policies, including the adoption or implementation of last-in-first-out basis accounting standards, (b) subject to the last paragraph of the definition of “GAAP,” the
cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period (including any impact resulting from an election by the Company to apply IFRS or other
Accounting Changes), and (c) any costs, charges, losses, fees or expenses in connection with the implementation or tracking of such changes or modifications specified in the foregoing clauses (a) and (b), in each case as reasonably
determined by the Company;
(6)
(a) any equity-based or non-cash compensation or similar charge, cost
or expense or reduction of revenue, including any such charge, cost, expense or reduction arising from any grant of stock, stock appreciation or similar rights, stock options, restricted stock, phantom equity, profits interests or other interests,
or other rights or equity- or equity-based incentive programs (“equity incentives”), any income (loss) associated with the equity incentives or other long-term incentive compensation plans (including under deferred compensation
arrangements of the Company or any Parent Entity or Subsidiary and any positive investment income with respect to funded deferred compensation account balances), roll-over, acceleration or payout of Capital Stock by employees, directors, officers,
managers, contractors, consultants, advisors or business partners (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Parent Entity or Subsidiary, and any cash awards granted to employees of the
Company and its Subsidiaries in replacement for forfeited awards, (b) any non-cash losses attributable to deferred compensation plans or trusts or realized in such period in connection with adjustments to
any employee benefit plan due to changes in estimates, actuarial assumptions, valuations, studies or judgments, (c) non-cash compensation expense resulting from the application of Accounting Standards
Codification Topic 718, Compensation—Stock Compensation or Accounting Standards Codification Topics 505-50 Equity-Based Payments to Non-Employees (or any successor
provision or other financial accounting standard having a similar result or effect), and (d) any net pension or post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, amortization of such
amounts arising in prior periods, amortization of the unrecognized obligation (and loss or cost) existing at the date of initial application of Statement of Financial Accounting Standards No. 87, 106 and 112 (or any successor provision or other
financial accounting standard having a similar result or effect), and any other item of a similar nature;
22
(7)
any income (loss) from the extinguishment, conversion or cancellation of Indebtedness, Hedging Obligations or
other derivative instruments (including deferred financing costs written off, premiums paid or other expenses incurred);
(8)
any unrealized or realized gains or losses in respect of any Hedging Obligations or any ineffectiveness
recognized in earnings related to hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions;
(9)
any fees, losses, costs, expenses or charges incurred during such period (including any transaction, retention
bonus or similar payment), or any amortization thereof for such period, in connection with (a) any acquisition, recapitalization, Investment, Asset Disposition, disposition, issuance or repayment of Indebtedness (including such fees, expense or
charges related to the offering, issuance and rating of the Notes, the First Lien Notes, other securities and any Credit Facilities), issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including
any amendment or other modification of the Notes, the First Lien Notes, other securities and any Credit Facilities), in each case, including the Transactions, any such transaction consummated prior to, on or after the Issue 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 (including, for
the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Accounting Standards Codification Topic 805—Business Combinations (or any successor provision or other financial accounting standard having a
similar result or effect) and any adjustments resulting from the application of Accounting Standards Codification Topic 460—Guarantees (or any successor provision or other financial accounting standard having a similar result or effect) or any
related pronouncements) and (b) complying with the requirements under, or making elections permitted by, the documentation governing any Indebtedness;
(10)
any unrealized or realized gain or loss resulting in such period from currency translation increases or
decreases 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 risk), intercompany loans, accounts receivables, accounts
payable, intercompany balances, other balance sheet items, Hedging Obligations or other obligations of the Company or any Restricted Subsidiary owing to the Company or any Restricted Subsidiary and any other realized or unrealized foreign exchange
gains or losses relating to the translation of assets and liabilities denominated in foreign currencies;
(11)
any unrealized or realized income (loss) or non-cash expense
attributable to movement in mark-to-market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP;
23
(12)
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 those required or permitted by Accounting Standards Codification Topic 805–Business Combinations and Accounting Standards Codification
350–Intangibles-Goodwill and Other (or any successor provision or other financial accounting standard having a similar result or effect)) and related pronouncements, 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, leases, goodwill, intangible assets, in-process research and development, deferred revenue
(including deferred costs related thereto and deferred rent) and debt line items thereof, resulting from the application of acquisition method accounting, recapitalization accounting or purchase accounting, as the case may be, in relation to the
Transactions or any consummated acquisition (by merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment or the amortization or write-off or write-down of any amounts
thereof;
(13)
any impairment charge, write-off or write-down, including impairment
charges, write-offs or write-downs related to intangible assets, long-lived assets, goodwill, investments in debt or equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) and
investments recorded using the equity method or as a result of a change in law or regulation, in connection with any disposition of assets and the amortization of intangibles arising pursuant to GAAP;
(14)
(a) accruals and reserves (including contingent liabilities) that are established or adjusted within 18 months
after the closing of any acquisition or disposition that are so required to be established or adjusted as a result of such acquisition or disposition in accordance with GAAP, or changes as a result of adoption or modification of accounting policies,
(b) charges, accruals, expenses and reserves as a result of adoption or modification of accounting policies, shall be excluded, and (c) earn-out, non-compete
and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise (and including deferred performance incentives in connection with any acquisition (by merger, consolidation, amalgamation or
otherwise), joint venture investment or other Investment whether or not a service component is required from the transferor or its related party)) and adjustments thereof and purchase price adjustments;
(15)
any income (loss) related to any realized or unrealized gains and losses resulting from Hedging Obligations or
embedded derivatives that require similar accounting treatment (including embedded derivatives in customer contracts), and the application of Accounting Standards Codification Topic 815—Derivatives and Hedging (or any successor provision or
other financial accounting standard having a similar result or effect) and its related pronouncements or mark to market movement of non-U.S. currencies, Indebtedness, derivatives instruments or other financial
instruments pursuant to GAAP, including Accounting Standards Codification Topic 825—Financial Instruments (or any successor provision or other financial accounting standard having a similar result or effect) or an alternative basis of
accounting applied in lieu of GAAP;
24
(16)
any non-cash expenses, accruals or reserves related to adjustments to
historical Tax exposures and any deferred tax expense associated with Tax deductions or net operating losses arising as a result of the Transactions, or the release of any valuation allowances related to such item;
(17)
the amount of (x) Board of Director (or equivalent thereof) fees, refinancing, transaction, advisory and
other fees (including exit and termination fees) and indemnities, costs and expenses paid or accrued in such period to (or on behalf of) any Permitted Holder or otherwise to any member of the Board of Directors (or the equivalent thereof) of the
Company, any of its Subsidiaries, any Parent Entity, any Permitted Holder or any Affiliate of a Permitted Holder, and (y) payments made to option holders of the Company or any Parent Entity in connection with, or as a result of, any
distribution being made to equityholders of such Person or its Parent Entity, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, including
any cash consideration for any repurchase of equity;
(18)
the amount of loss or discount on sale of Securitization Assets, Receivables Assets and related assets in
connection with a Qualified Securitization Financing or Receivables Facility; and
(19)
(i) payments to third parties in respect of research and development, including amounts paid upon signing,
success, completion and other milestones and other progress payments, to the extent expensed, (ii) at the election of the Company with respect to any quarterly period, 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), and (iii) at the election of the Company 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.
In
addition, to the extent not already excluded (or included, as applicable) in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall be
increased by the amount of: (i) any expenses, charges or losses that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets
permitted hereunder, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such evidence (net of any amount so added back in a prior
period to the extent not so reimbursed within the applicable 365-day period) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as
the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such evidence (net of
any amount so added back in a prior period to the extent not so
25
reimbursed within the applicable 365-day period), expenses, charges or losses with respect to liability or Casualty Events or business interruption.
Consolidated Net Income shall be reduced by the amount of distributions actually made to any Parent Entity of such Person in respect of such period in accordance with Section 3.3(b)(9)(i) as though such amounts had been
paid as Taxes directly by such Person for such periods.
“Consolidated Total Indebtedness” means, as of any date of
determination, an amount equal to (a) the aggregate principal amount of outstanding Indebtedness for borrowed money (excluding Indebtedness with respect to Cash Management Obligations and intercompany Indebtedness), plus (b) the aggregate
principal amount of Finance Lease Obligations, Purchase Money Obligations and unreimbursed drawings under letters of credit of the Company and its Restricted Subsidiaries outstanding on such date (provided that any unreimbursed amount under
commercial letters of credit shall not be counted as Consolidated Total Indebtedness until five Business Days after such amount is drawn), minus (c) the aggregate amount of cash and Cash Equivalents included on the consolidated balance sheet of
the Company and its Restricted Subsidiaries as of the end of the most recent fiscal period for which consolidated financial statements are available (which may, at the Company’s election, be internal financial statements) (provided that
the cash proceeds of any proposed incurrence of Indebtedness shall not be included in this clause (c) for purposes of calculating the Consolidated Total Leverage Ratio), with such pro forma adjustments as are consistent with the pro forma
adjustments set forth in the definition of “Fixed Charge Coverage Ratio.” For the avoidance of doubt, Consolidated Total Indebtedness shall exclude Indebtedness in respect of any Receivables Facility or Securitization Facility but shall
include the Reserved Indebtedness Amount, if any.
“Consolidated Total Leverage Ratio” means, as of any date of
determination, the ratio of (x) Consolidated Total Indebtedness as of such date to (y) LTM EBITDA.
“Contingent
Obligations” means, with respect to any Person, any obligation of such Person guaranteeing in any manner, whether directly or indirectly, any operating lease, dividend or other obligation that does not constitute Indebtedness
(“primary obligations”) of any other Person (the “primary obligor”), including any obligation of such Person, whether or not contingent:
(1)
to purchase any such primary obligation or any property constituting direct or indirect security therefor;
(2)
to advance or supply funds:
(a)
for the purchase or payment of any such primary obligation; or
(b)
to maintain the working capital or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor; or
(3)
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, 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 Company and/or other companies.
26
“Controlling Collateral Agent” has the meaning assigned to such term in
the First Lien Intercreditor Agreement.
“Corporate Trust Office” means the designated corporate trust office of the
Trustee at which at any time its corporate trust business will be administered (which office at the date of this Indenture is located at Regions Bank, Attention: Corporate Trust Services – Accendra Health, Inc., 1180 West Peachtree Street,
Suite 1200, Atlanta, GA 30309), or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the designated 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 Company).
“Credit Agreements” means the Term
Loan Credit Agreement and the Revolving Credit Agreement.
“Credit Facility” means, with respect to the Company or any
of its Subsidiaries, one or more debt facilities (including the Credit Agreements), indentures or other arrangements, commercial paper facilities and overdraft facilities with banks, other financial institutions or investors providing for revolving
credit loans, term loans, notes, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other
Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended in whole or in part from time to time (and whether in whole or in part and whether or not with the
original administrative agent and lenders or another administrative agent or agents or other banks or institutions and whether provided under the relevant original Credit Agreement or one or more other credit or other agreements, indentures,
financing agreements or otherwise) and in each case including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including any notes and letters of credit issued pursuant thereto and any
Guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other Guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the
foregoing, the term “Credit Facility” shall include any agreement or instrument (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
“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 prior to becoming
an Event of Default.
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“Definitive Notes” means certificated Notes.
“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.
“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 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 provisions of this Indenture.
“Derivative
Instrument” with respect to a Person, means 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 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 Company and/or any one or more of the Guarantors (the “Performance References”).
“Designated Non-Cash Consideration” means the fair market value (as determined in
good faith by the Company) of non-cash consideration received by the Company or any of its Restricted Subsidiaries in connection with an Asset Disposition 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 or Cash Equivalents received in connection with a subsequent payment, redemption,
retirement, sale or other disposition of 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 compliance with Section 3.5 hereof.
“Designated Preferred Stock” means Preferred Stock of the Company or a Parent Entity (other than Disqualified Stock)
that is issued for cash (other than to the Company or a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees to the extent funded by the Company
or such Subsidiary) and that is designated as “Designated Preferred Stock” pursuant to an Officer’s Certificate of the Company at or prior to the issuance thereof, the Net Cash Proceeds of which are excluded from the calculation
set forth in Section 3.3(a)(iii)(C) hereof.
“Disinterested Director” means, with respect to
any Affiliate Transaction, a member of the Board of Directors of the Company having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of the Board of Directors of the Company shall be deemed
not to have such a financial interest by reason of such member’s holding Capital Stock of the Company or any options, warrants or other rights in respect of such Capital Stock.
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“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 exchangeable) or upon the happening of any event:
(1)
matures or is mandatorily redeemable for cash or in exchange for Indebtedness pursuant to a sinking fund
obligation or otherwise; or
(2)
is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable
or repurchasable for cash or in exchange for Indebtedness at the option of the holder of the Capital Stock in whole or in part,
in each
case on or prior to the earlier of (a) the Stated Maturity of the Notes or (b) the date on which there are no Notes outstanding; provided, however, that (i) only the portion of Capital Stock which so matures or is
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock and (ii) any Capital Stock that would constitute Disqualified Stock
solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Stock if any such
redemption or repurchase obligation is subject to compliance by the relevant Person with Section 3.3 hereof; provided, however, that if such Capital Stock is issued to any future, current or former employee,
director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members (excluding the Permitted Holders (but not excluding any future, current or former employee, director, officer, manager or
consultant)) or Immediate Family Members), of the Company, any of its Subsidiaries, any Parent Entity or any other entity in which the Company or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate”
by the Board of Directors (or the compensation committee thereof) or any other plan for the benefit of current, former or future employees (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or its
Subsidiaries or by any such plan to such employees (or their respective Controlled Investment Affiliates or Immediate Family Members), such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by
the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dollars” or
“$” means the lawful currency of the United States of America.
“Domestic Foreign Holding Company”
means any Subsidiary that owns no material assets (directly or through one or more disregarded entities) other than capital stock (including any Indebtedness that is treated as equity for U.S. Federal income tax purposes) of one or more CFCs.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the
District of Columbia.
“DTC” means The Depository Trust Company or any successor securities clearing agency.
“Equity Offering” means a sale of Capital Stock (other than through the issuance of Disqualified Stock or Designated
Preferred Stock or through an Excluded Contribution) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any similar offering in other jurisdictions or
other securities of the Company or any Parent Entity and (b) issuances of Capital Stock to any Subsidiary of the Company.
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“Euro” means the single currency of participating member states of the
economic and monetary union as contemplated in the Treaty on European Union.
“Exchange Act” means the U.S. Securities
Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
“Exchange
Offers” means the offers by the Company to any and all holders of (i) Existing Notes to exchange their Existing Notes for a combination of Notes and First Lien Notes and (ii) 2029 Notes to subscribe to purchase the First Lien Notes
for cash, in each case, as described in the Exchange Offering Memorandum.
“Exchange Offer Final Settlement Date” means
the last date on which any Notes or First Lien Notes are issued in exchange for Existing Notes pursuant to the terms of the Exchange Offers.
“Exchange Offering Memorandum” means the confidential offering memorandum and consent solicitation statement, dated
May 22, 2026, setting forth the terms and conditions of the Exchange Offers, as amended or supplemented, including by way of press release or other public announcement.
“Excluded Contribution” means Net Cash Proceeds or property or assets received by the Company as capital contributions to
the equity (other than through the issuance of Disqualified Stock or Designated Preferred Stock) of the Company after the Issue Date or from the issuance or sale (other than to a Restricted Subsidiary or an employee stock ownership plan or trust
established by the Company or any Subsidiary of the Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) of Capital Stock (other than Disqualified Stock or Designated Preferred Stock) of the
Company.
“Excluded Equity” means equity interests (i) of any Unrestricted Subsidiary, (ii) of any Foreign
Subsidiary or Domestic Foreign Holding Company (in each case other than any Guarantor), in each case of the Company or a Domestic Subsidiary of the Company and not otherwise constituting Excluded Equity, in excess of 65% of the issued and
outstanding equity interests of each such Foreign Subsidiary or Domestic Foreign Holding Company (and of any subsidiary of such Foreign Subsidiary or Domestic Foreign Holding Company), (iii) of any Subsidiary with respect to which the Revolving
Credit Agreement Collateral Agent and the Company have determined in their reasonable judgment and agreed in writing that the costs or other consequences (including any adverse tax consequences; provided that with respect to adverse tax
consequences the determination shall be made by the Company in good faith) of providing a pledge of such equity interests or perfection thereof is excessive in view of the benefits to be obtained by the applicable First Lien Secured Parties
therefrom, (iv) of any Captive Insurance Subsidiaries, not-for-profit Subsidiaries, special purpose entities, (v) of any
non-Wholly Owned Restricted Subsidiary; (vi) of any Securitization Subsidiary; (vii) of any Subsidiary outside the United States (other than any Guarantor) the pledge of which is prohibited by
applicable laws or which would reasonably be expected to result in a violation or breach of, or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers; and (viii) of Accendra Health Foundation and Accendra
Executive Deferred Compensation Trust.
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“Excluded Property” means any of the following assets
not included in the Collateral granted by the Company and the Guarantors securing the Notes:
(i) (x) any fee-owned real property and (y) any leasehold interests in real property (it being understood that no action shall be required with respect to creation or perfection of security interests with respect to such
any such fee-owned or leasehold interests, including to obtain landlord waivers, estoppels or collateral access letters);
(ii) (A) motor vehicles and other assets subject to certificates of title to the extent a Lien thereon cannot be perfected
by the filing of a UCC financing statement (or analogous procedures under applicable laws in the relevant jurisdiction in the case of jurisdictions other than the U.S.), (B) letter of credit rights to the extent a Lien thereon cannot be
perfected by the filing of a UCC financing statement (or analogous procedures under applicable laws in the relevant jurisdiction in the case of jurisdictions other than the U.S.) and (C) commercial tort claims;
(iii) assets for so long as a pledge thereof or a security interest therein is prohibited by applicable laws;
(iv) margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the
United States);
(v) any cash, deposit accounts and securities accounts (including securities entitlements and related
assets) (it being understood that this exclusion shall not affect the grant of the Lien on proceeds of Collateral and all proceeds of Collateral shall be Collateral);
(vi) any lease, license or other agreements, or any property subject to a purchase money security interest, capitalized lease
obligation or similar arrangements, in each case to the extent permitted under the Note Documents, to the extent that a pledge thereof or a security interest therein would violate or invalidate such lease, license or agreement, purchase money,
capitalized lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than the Company or a Guarantor) after giving effect to the applicable anti-assignment clauses of the UCC and applicable laws,
other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable laws notwithstanding such prohibition;
(vii) assets for which a pledge thereof or security interest therein would result in a material adverse tax consequence as
determined in good faith by the Company; provided that nothing in this clause (vii) shall limit the pledge of assets by any Foreign Subsidiary that is a Guarantor;
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(viii) assets for which the Revolving Credit Agreement Collateral Agent and
the Company have determined in their reasonable judgment that the cost of creating or perfecting such pledges or security interests therein would be excessive in view of the benefits to be obtained by the applicable First Lien Secured Parties
therefrom;
(ix) any intent-to-use
trademark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant,
attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable
federal law;
(x) Excluded Equity;
(xi) any asset of any Subsidiary of the Company that is a CFC or Domestic Foreign Holding Company; and
(xii) any other asset that does not secure the First Lien Notes.
“Excluded Subsidiary” means (i) Accendra Health Foundation and Accendra Executive Deferred Compensation Trust,
(ii) any Subsidiary that is prohibited by applicable law or by any contractual obligation existing on the Issue Date (or, if later, the date such Subsidiary first becomes a Subsidiary) from guaranteeing the Obligations (and in the case of such
contractual obligation, not entered into in contemplation of the acquisition of such Subsidiary) or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent,
approval, license or authorization has been received, (iii) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or other similar Investment permitted hereunder that, at the time of such Permitted Acquisition or other
similar Investment, has outstanding secured Indebtedness not incurred in contemplation of such Permitted Acquisition or other similar Investment and each Restricted Subsidiary that is a Subsidiary thereof that guarantees such Indebtedness, in each
case, to the extent such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor (provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause (iii) if such secured
Indebtedness is repaid or becomes unsecured, if such Restricted Subsidiary ceases to be an obligor with respect to such secured Indebtedness or such prohibition no longer exists, as applicable), (iv) any Immaterial Subsidiary or Unrestricted
Subsidiary, (v) Captive Insurance Subsidiaries, (vi) [reserved], (vii) [reserved], (viii) any non-Wholly Owned Subsidiary, (ix) any Domestic Foreign Holding Company, (x) any
Foreign Subsidiary that is a CFC (other than any Foreign Subsidiary that is a Guarantor), (xi) any Domestic Subsidiary of a Foreign Subsidiary that is a CFC (other than any Foreign Subsidiary that is a Guarantor), (xii) any Securitization
Subsidiary, (xiii) any other Subsidiary with respect to which the Company has determined in its reasonable judgment that the cost or other consequences (including any adverse tax consequences; provided that with respect to adverse
tax consequences the determination shall be made by the Company in good faith) of providing a Guarantee is excessive in view of the benefits to be obtained by the applicable First Lien Secured Parties therefrom and (xiv) any other Subsidiary that is
an “Excluded Subsidiary” under the First Lien Notes Indenture, in each case unless such Subsidiary is designated as a Guarantor hereunder; provided that such Subsidiary shall not guarantee any Indebtedness for borrowed
money of a Note Party in an aggregate principal amount in excess of $25 million.
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“Existing Notes” means the 2029 Notes and the 2030 Notes.
“fair market value” may be conclusively established by means of an Officer’s Certificate or resolutions of the Board
of Directors of the Company setting out such fair market value as determined by such Officer or such Board of Directors in good faith.
“Finance Lease Obligations” means an obligation that is required to be classified and accounted for as a finance lease for
financial reporting purposes on the basis of GAAP; provided that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to December 31, 2018 (whether or not such
operating leases were in effect on such date) shall continue to be accounted for as operating leases (and not as Finance Lease Obligations) for purposes of this Indenture regardless of any change in GAAP thereafter that would otherwise require such
leases to be recharacterized as Finance Lease Obligations. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined on the basis of
GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“First Lien Credit Agreement Collateral Agents” means the Revolving Credit Agreement Collateral Agent and the Term Loan
Credit Agreement Collateral Agent.
“First Lien Credit Agreement Obligations” means the Obligations in respect of the
Revolving Credit Agreement and Term Loan Credit Agreement and the applicable First Lien Documents.
“First Lien Credit Agreement
Secured Parties” means the (a) “Secured Parties” as defined in the Revolving Credit Agreement and (b) “Secured Parties” as defined in the Term Loan Credit Agreement.
“First Lien Documents” means the indentures, credit agreements, guarantee agreements and collateral agreements governing
any Series of First Lien Obligations.
“First Lien Intercreditor Agreement” means that certain Amended and Restated
First Lien Pari Passu Intercreditor Agreement, dated as of the Issue Date, by and among the First Lien Credit Agreement Collateral Agents, the First Lien Notes Collateral Agent, the Company and the Guarantors party thereto as the same may be
amended, restated, amended and restated, supplemented or otherwise modified from time to time which shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof.
“First Lien Notes” means the Company’s 9.000% Senior Secured First Lien Notes due 2032 issued by the Company pursuant
to the First Lien Notes Indenture in the Exchange Offers.
“First Lien Notes Collateral Agent” means Regions Bank, in
its capacity as collateral agent for the holders of the First Lien Notes Obligations under the First Lien Notes Indenture and the First Lien Notes Collateral Documents and any successor pursuant to the provisions of this Indenture and the First Lien
Notes Collateral Documents.
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“First Lien Notes Collateral Documents” means, collectively, the First
Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, any other intercreditor agreements entered into from time to time, the First Lien Notes Security Documents and the supplements thereto.
“First Lien Notes Documents” means the First Lien Notes (including any additional First Lien Notes pursuant to First Lien
Notes Indenture), the First Lien Note Guarantees, the First Lien Notes Collateral Documents and the First Lien Notes Indenture.
“First Lien Notes Guarantees” means the Guarantees of the First Lien Notes.
“First Lien Notes Indenture” means the indenture governing the First Lien Notes dated as of the Issue Date, by and among
the Company, the guarantors party thereto from time to time and Regions Bank, as trustee (in such capacity, the “First Lien Notes Trustee”) and collateral agent.
“First Lien Notes Obligations” means the Obligations in respect of the First Lien Notes, the First Lien Notes Indenture,
the First Lien Notes Guarantees, the First Lien Notes Collateral Documents and the other First Lien Notes Documents.
“First Lien
Notes Secured Parties” means the First Lien Notes Trustee, the First Lien Notes Collateral Agent and the holders of the First Lien Notes.
“First Lien Notes Security Agreement” means that certain Security Agreement, dated as of the Issue Date, among the Company,
the guarantors party thereto from time to time and the First Lien Notes Collateral Agent.
“First Lien Notes Security
Documents” means the First Lien Notes Security Agreement, each joinder to the First Lien Notes Security Agreement, all security agreements, pledge agreements, control agreements, collateral assignments, mortgages, deeds of trust or other
grants or transfers for security or agreements related thereto executed and delivered by the Company or any guarantor pursuant to which a Lien is granted (or purported to be granted) in favor of the First Lien Notes Collateral Agent on behalf of
itself, the First Lien Notes Trustee, the holders of the First Lien Notes and the other First Lien Notes Secured Parties to secure the First Lien Notes and the First Lien Note Guarantees, in each case, as amended, restated, amended and restated,
supplemented, replaced or otherwise modified from time to time.
“First Lien Obligations” means, collectively,
(a) the First Lien Credit Agreement Obligations, (b) the First Lien Notes Obligations and (c) each other Series of Additional First Lien Obligations.
“First Lien Secured Parties” means (a) the First Lien Credit Agreement Secured Parties, (b) the First Lien Notes
Secured Parties and (c) the Additional First Lien Secured Parties with respect to each other Series of Additional First Lien Obligations.
“Fitch” means Fitch Ratings, Inc. or any of its successors or assigns that is a Nationally Recognized Statistical Rating
Organization.
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“Fixed Charge Coverage Ratio” means, with respect to any Person on any
determination date, the ratio of Consolidated EBITDA of such Person for the most recent four consecutive fiscal quarters ending immediately prior to such determination date (the “reference period”) for which consolidated financial
statements are available (which may be internal consolidated financial statements) to the Fixed Charges of such Person for the reference period. In the event that the Company or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
defeases, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced), has caused any Reserved Indebtedness Amount to
be deemed to be incurred during such period or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the reference period but prior to or simultaneously 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, deemed incurrence, assumption, guarantee,
redemption, defeasance, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above, any Investments, acquisitions, dispositions, mergers, amalgamations, consolidations
and disposed operations that have been made by the Company or any of its Restricted Subsidiaries, during the reference period or subsequent to the reference period and on or prior to or simultaneously 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 and disposed operations (and the change in any associated fixed charge obligations and the change in
Consolidated EBITDA resulting therefrom) had occurred on the first day of the reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged or amalgamated with or into the Company
or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, amalgamation, consolidation or disposed operation 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 or disposed operation had occurred at the
beginning of the reference period.
For purposes of this definition, whenever pro forma effect is to be given to a transaction (including
the Transactions), the pro forma calculations shall be made in good faith by a responsible financial or chief accounting officer of the Company (and may include, for the avoidance of doubt, cost savings, operating expenses reductions and synergies
resulting from such transactions which is being given pro forma effect). If any Indebtedness bears a floating 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 reference period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Finance Lease Obligation shall be deemed to accrue
at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Finance 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 with a pro forma basis shall be computed based upon the average daily balance
35
of such Indebtedness during the reference 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 determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Company may
designate.
“Fixed Charges” means, with respect to any Person for any period, the sum of:
(1)
Consolidated Interest Expense of such Person for such Period;
(2)
all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of
Preferred Stock of any Restricted Subsidiary of such Person during such period; and
(3)
all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of
Disqualified Stock of such Person during this period.
“Foreign Subsidiary” means any direct or
indirect Subsidiary of the Company which is not a Domestic Subsidiary.
“GAAP” means generally accepted accounting
principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time; provided that all terms of an accounting or financial nature
used in this Indenture shall be construed, and all computations of amounts and ratios referred to in this Indenture shall be made (a) without giving effect to any election under Accounting Standards Codification Topic 825—Financial
Instruments, or any successor thereto or comparable accounting principle (including pursuant to the Accounting Standards Codification), to value any Indebtedness of the Company or any Subsidiary at “fair value,” as defined therein and
(b) the amount of any Indebtedness under GAAP with respect to Finance Lease Obligations shall be determined in accordance with the definition of Finance Lease Obligations. At any time after the Issue Date, the Company may elect to apply IFRS
accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this Indenture); provided that any such election, once made, shall be
irrevocable; provided, further, that any calculation or determination in this Indenture that requires the application of GAAP for periods that include fiscal quarters ended prior to the Company’s election to apply IFRS shall remain as
previously calculated or determined in accordance with GAAP. The Company shall give notice of any such election made in accordance with this definition to the Trustee. 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.
If there occurs a change in IFRS or GAAP, as the
case may be, and such change would cause a change in the method of calculation of any standards, terms or measures (including all computations of amounts and ratios) used in this Indenture (an “Accounting Change”), then the
Company may elect, as evidenced by a written notice of the Company to the Trustee, that such standards, terms or measures shall be calculated as if such Accounting Change had not occurred.
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“Guarantee” means, any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other
Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise); or
(2)
entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the
payment thereof or to protect such obligee against loss in respect thereof (in whole or in part),
provided, however, that
the term “Guarantee” will not include (x) endorsements for collection or deposit in the ordinary course of business or consistent with past practice and (y) standard contractual indemnities or product warranties provided in the
ordinary course of business, and provided further that the amount of any Guarantee shall be deemed to be the lower of (i) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee
is made and (ii) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee or, if such Guarantee is not an unconditional guarantee of the entire amount of the primary
obligation and such maximum amount is not stated or determinable, the amount of such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. The term “Guarantee”
used as a verb has a corresponding meaning.
“Guarantor” means any Restricted Subsidiary that Guarantees the Notes,
until such Note Guarantee is released in accordance with the terms of this Indenture.
“Hedging Obligations” means,
with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign
exchange contracts, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
“Holder” means each Person in whose name the Notes are registered on the Registrar’s books, which shall initially be
the nominee of DTC.
“Holding Company” means any Person so long as such Person directly or indirectly holds 100% of the
total voting power of the Voting Stock of the Company, and at the time such Person acquired such voting power, no Person and no group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor
provision), 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, or any successor provision), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of
such Person.
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“IFRS” means the International Financial Reporting Standards as issued by
the International Accounting Standards Board as in effect from time to time.
“Immaterial Subsidiary” means, at any
date of determination, each Restricted Subsidiary of the Company that (i) has Total Assets and Consolidated EBITDA of less than 2.5% of the Total Assets and the total Consolidated EBITDA of the Company and its Restricted Subsidiaries and,
(ii) together with all other Immaterial Subsidiaries, has Total Assets and Consolidated EBITDA of less than 7.5% of the Total Assets and the total Consolidated EBITDA of the Company and its Restricted Subsidiaries, in each case, determined on a
consolidated basis in accordance with GAAP, as applicable, measured at the end of the most recent fiscal period for which internal financial statements are available and Consolidated EBITDA on a pro forma basis giving effect to any acquisitions or
dispositions of companies, division or lines of business since such balance sheet date or the start of such four quarter period, as applicable, and on or prior to the date of acquisition of such Subsidiary.
“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 estate 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.
“Incur” means issue, create, assume, enter into any Guarantee of, incur, extend or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be
Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing and any Indebtedness pursuant to any revolving credit
or similar facility shall only be “Incurred” at the time any funds are borrowed thereunder.
“Indebtedness”
means, with respect to any Person on any date of determination (without duplication):
(1)
the principal of indebtedness of such Person for borrowed money;
(2)
the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)
all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or
other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit or other instruments plus the aggregate amount of drawings thereunder that have not been
reimbursed) (except to the extent such reimbursement obligations relate to trade payables and such obligations are satisfied within 30 days of Incurrence);
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(4)
the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of
property (except trade payables or similar obligations to trade creditors), which purchase price is due more than one year after the date of placing such property in service or taking final delivery and title thereto;
(5)
Finance Lease Obligations of such Person;
(6)
the principal component of all obligations, or liquidation preference, of such Person with respect to any
Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)
the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the fair market value of such asset at such date of determination (as determined in good
faith by the Company) and (b) the amount of such Indebtedness of such other Persons;
(8)
Guarantees by such Person of the principal component of Indebtedness of the type referred to in clauses (1),
(2), (3), (4), (5) and (9) of other Persons to the extent Guaranteed by such Person; and
(9)
to the extent not otherwise included in this definition, net obligations of such Person under Hedging
Obligations (the amount of any such obligations to be equal at any time to the net payments under such agreement or arrangement giving rise to such obligation that would be payable by such Person at the termination of such agreement or arrangement);
with respect to clauses (1), (2), (4) and (5) above, 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.
The amount of Indebtedness of any Person at any time in the case of a revolving credit or similar facility shall be the total amount of funds
borrowed and then outstanding. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of
Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. Indebtedness shall be calculated without giving effect to the effects of 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.
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Notwithstanding the above provisions, in no event shall the following constitute
Indebtedness:
(i)
Contingent Obligations Incurred in the ordinary course of business or consistent with past practice, other than
Guarantees or other assumptions of Indebtedness;
(ii)
Obligations under or in respect of Qualified Securitization Financings or Receivables Facilities;
(iii)
Cash Management Services;
(iv)
any lease, concession or license of property (or Guarantee thereof) which would be considered an operating
lease under GAAP, Non-Financing Lease Obligations or any prepayments of deposits received from clients or customers in the ordinary course of business or consistent with past practice;
(v)
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;
(vi)
in connection with the purchase by the Company or any Restricted Subsidiary of any business, any deferred or
prepaid revenue, 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;
(vii)
for the avoidance of doubt, any obligations in respect of workers’ compensation claims, early retirement
or termination obligations, pension fund obligations or contributions or similar claims, obligations or contributions or social security or wage Taxes;
(viii)
Indebtedness of any Parent Entity appearing on the balance sheet of the Company solely by reason of push down
accounting under GAAP;
(ix)
Capital Stock (other than Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred
Stock); or
(x)
amounts owed to dissenting stockholders in connection with, or as a result of, their exercise of appraisal
rights and the settlement of any claims or action (whether actual, contingent or potential) with respect thereto (including any accrued interest).
“Indenture” means this Indenture as amended or supplemented from time to time.
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“Independent Financial Advisor” means an accounting, appraisal,
investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing; provided, however, that such firm or appraiser is not an Affiliate of the Company.
“Initial Guarantors” means the entities listed on the signature pages hereof as “Guarantors.”
“Initial Notes” has the meaning ascribed to it in the recitals of this Indenture.
“Intellectual Property” means registered trademarks, service marks, trade names, domain names, copyrights, patents or other
intellectual property.
“Intercompany License Agreement” means any cost sharing agreement, commission or royalty
agreement, license or sublicense agreement, distribution agreement, services agreement, intellectual property rights transfer agreement, any related agreements or similar agreements, in each case where all parties to such agreement are one or more
of the Company or a Restricted Subsidiary.
“Intercreditor Agreements” means each of the Junior Lien Intercreditor
Agreement, the Second Lien Intercreditor Agreement and any Other Intercreditor Agreement.
“Investment” means, with
respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of advances, loans or other extensions of credit (other than advances or extensions of credit to customers, suppliers, directors, officers or
employees of any Person in the ordinary course of business or consistent with past practice, and excluding any debt or extension of credit represented by a bank deposit other than a time deposit) or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property or services for the account or use of others), or the Incurrence of a Guarantee of any obligation of, or any purchase or acquisition of Capital Stock, Indebtedness or other similar
instruments issued by, such other Persons and all other items that are or would be classified as investments on a balance sheet prepared on the basis of GAAP; provided, however, that endorsements of negotiable instruments and documents in the
ordinary course of business or consistent with past practice will not be deemed to be an Investment.
For purposes of
Section 3.3 and Section 3.20 hereof:
(1)
“Investment” will include the portion (proportionate to the Company’s equity interest
in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the fair market value of the net assets of such Restricted Subsidiary of the Company at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company will be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive)
equal to (a) the Company’s “Investment” in such Subsidiary at the time of such redesignation less (b) the portion (proportionate to the Company’s equity interest in such Subsidiary) of the fair market value of the
net assets (as determined by the Company) of such Subsidiary at the time that such Subsidiary is so re-designated a Restricted Subsidiary;
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(2)
any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the
time of such transfer, in each case as determined in good faith by the Company; and
(3)
if the Company or any Restricted Subsidiary issues, sells or otherwise disposes of 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 Company or any Restricted Subsidiary in such Person remaining after giving effect thereto shall not be
deemed to be an Investment at such time.
The amount of any Investment outstanding at any time shall be the original
cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash and Cash Equivalents by the Company or a Restricted Subsidiary in respect of such Investment to the
extent such amounts do not increase any other baskets under this Indenture.
“Investment Grade Securities” means:
(1)
securities issued or directly and fully Guaranteed or insured by the United States, Canadian, Swiss or United
Kingdom government or any agency or instrumentality thereof (other than Cash Equivalents);
(2)
securities issued or directly and fully guaranteed or insured by a member of the European Union, or any agency
or instrumentality thereof (other than Cash Equivalents);
(3)
debt securities or debt instruments with a rating of “BBB-”
or higher from S&P or “Baa3” or higher by Moody’s or the equivalent of such rating by such rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by any other Nationally
Recognized Statistical Ratings Organization, but excluding any debt securities or instruments constituting loans or advances among the Company and its Subsidiaries; and
(4)
investments in any fund that invests exclusively in investments of the type described in clauses (1), (2) and
(3) above which fund may also hold cash and Cash Equivalents pending investment or distribution.
“Investment Grade Status” shall occur when the Notes receive two of the following:
(1)
a rating of “BBB-” or higher from S&P;
(2)
a rating of “Baa3” or higher from Moody’s; or
(3)
a rating of “BBB-” or higher from Fitch;
or the equivalent of such rating by either any rating organization or, if no rating of Moody’s or S&P then exists, the equivalent of such rating by
any other Nationally Recognized Statistical Ratings Organization.
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“Issue Date” means June 15, 2026.
“Issuer” has the meaning assigned to it in the recitals of this Indenture.
“Junior Lien Intercreditor Agreement” means that certain Junior Lien Intercreditor Agreement, dated as of the Issue Date,
by and among the First Lien Credit Agreement Collateral Agents, the Notes Collateral Agent, the First Lien Notes Collateral Agent, the Company and the Guarantors party thereto, as the same may be amended, restated, amended and restated, supplemented
or otherwise modified from time to time which shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof.
“Junior Lien Obligations” means any Obligations with respect to Indebtedness for borrowed money permitted to be incurred
under this Indenture, which is by its terms intended to be secured by the Collateral with a Junior Lien Priority relative to the Notes; provided that the holders of such Indebtedness or their Collateral Agent shall become party to the Junior
Lien Intercreditor Agreement.
“Junior Lien Priority” means, relative to specified Indebtedness, Indebtedness that is
secured by a Lien on the Collateral that is junior in priority to the Liens on the Collateral and is subject to the Junior Lien Intercreditor Agreement (it being understood that junior Liens are not required to rank equally and ratably with other
junior Liens, and that Indebtedness secured by junior Liens may be secured by Liens that are senior in priority to, or rank equally and ratably with, or junior in priority to, other Liens constituting junior Liens).
“Liability Management Transaction” means any refinancing, retirement, exchange, extension, repurchase, or defeasance of any
Notes or any Indebtedness for borrowed money that is contractually or structurally junior thereto with any other Indebtedness that is contractually, structurally or temporally senior (including as to Lien priority or additional collateral) to the
Notes (including, for the avoidance of doubt, through any incurrence of Indebtedness by a Person that is not the Issuer or a Guarantor, whether or not such Person owns any assets or property), and any asset transfer (and including any related
assumption of liabilities) consummated in connection therewith; provided that, for the avoidance of doubt, in no event shall any of the following constitute a Liability Management Transaction:
(1) any refinancing, retirement, exchange, extension, repurchase, or defeasance of any existing Indebtedness of the Issuer or any of its
Restricted Subsidiaries that is already contractually, structurally or temporally senior (including as to Lien priority or additional collateral) to such Notes, with Indebtedness that is so senior to no greater extent;
(2) any Indebtedness that is offered ratably on the same terms and conditions as offered to all other providers of such Indebtedness (other
than bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such transaction), to all adversely affected Holders; or
(3) any Indebtedness (i) constituting the First Lien Notes or the Initial Notes incurred in connection with the Exchange Offers or
(ii) incurred to finance the repurchase of or in exchange for the Existing Notes in accordance with Section 3.2(b)(11) and Section 3.3(b)(14).
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“Lien” means any mortgage, pledge, security interest, encumbrance, lien,
hypothecation or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof); provided, that in no event shall an operating lease to 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), whose consummation is not conditioned on the
availability of, or on obtaining, third party financing, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Stock or Preferred Stock requiring irrevocable notice in advance of such
redemption, repurchase, defeasance, satisfaction and discharge or repayment, (3) any Restricted Payment requiring irrevocable notice in advance thereof; (4) any asset sale or a disposition excluded from the definition of “Asset
Disposition” and (5) a “Change of Control.”
“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 Consolidated EBITDA of the Company 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 Company are available, in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition or Investment, as
applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in the definition of “Fixed Charge Coverage Ratio.”
“Management Advances” means loans or advances made to, or Guarantees with respect to loans or advances made to, directors,
officers, employees or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of any Parent Entity, the Company or any Restricted Subsidiary:
(1)
(a) in respect of travel, entertainment, relocation or moving related expenses, payroll advances and other
analogous or similar expenses or payroll expenses, in each case Incurred in the ordinary course of business or consistent with past practice or (b) for purposes of funding any such person’s purchase of Capital Stock (or similar
obligations) of the Company, its Subsidiaries or any Parent Entity with (in the case of this sub-clause (b)) the approval of the Board of Directors;
(2)
in respect of relocation or moving related expenses, payroll advances and other analogous or similar expenses
or payroll expenses, in each case Incurred in connection with any closing or consolidation of any facility or office; or
(3)
not exceeding $10 million in the aggregate outstanding at the time of Incurrence.
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“Management Stockholders” means the members of management of the Company
(or any Parent Entity) or its Subsidiaries who are holders of Capital Stock of the Company or of any Parent Entity on the Issue Date.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common
Capital Stock of the Company or any Parent Entity on the date of the declaration of a Restricted Payment permitted pursuant to Section 3.3(b)(10) multiplied by (ii) the arithmetic mean of the closing prices per share
of such common Capital Stock on the principal securities exchange on which such common Capital Stock are traded for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
“Moody’s” means Moody’s Investors Service, Inc. or any of its successors or assigns that is a Nationally
Recognized Statistical Rating Organization.
“Nationally Recognized Statistical Rating Organization” means a nationally
recognized statistical rating organization within the meaning of Rule 436 under the Securities Act.
“Net Available
Cash” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other
disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring person of Indebtedness or other obligations relating to the properties
or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)
all legal, accounting, consulting, investment banking, title and recording tax expenses, commissions, premiums
(including tender premiums), defeasance costs, underwriting discounts and other fees and expenses (including original issue discount, upfront fees or similar fees) Incurred, and all Taxes paid, reasonably estimated to be actually payable or accrued
as a liability under GAAP (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of such proceeds to the Company or any of its Subsidiaries, transfer taxes, deed or mortgage recording
taxes and Taxes that would be payable in connection with any deemed or actual repatriation of such proceeds and after taking into account any available tax credits or deductions and any tax sharing agreements), as a consequence of such Asset
Disposition, including distributions for Related Taxes;
(2)
all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition, in
accordance with the terms of any Lien upon such assets, or which by applicable law must be repaid out of the proceeds from such Asset Disposition;
(3)
all distributions and other payments required to be made to minority interest holders (other than any Parent
Entity, the Company or any of its respective Subsidiaries) in Subsidiaries or joint ventures as a result of such Asset Disposition;
45
(4)
the deduction of appropriate amounts required to be provided by the seller as a reserve, on the basis of GAAP,
against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Restricted Subsidiary after such Asset Disposition; and
(5)
any funded escrow established pursuant to the documents evidencing such sale or disposition to secure and
indemnification obligation on adjustments to the purchase price associated with any such Asset Disposition.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale
net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such
issuance or sale and net of Taxes paid or reasonably estimated to be actually payable as a result of such issuance or sale (including, for the avoidance of doubt, any income, withholding and other Taxes payable as a result of the distribution of
such proceeds to the Company or any of its Subsidiaries, transfer taxes, deed or mortgage recording taxes and Taxes that would be payable in connection with any deemed or actual repatriation of such proceeds and after taking into account any
available tax credit or deductions and any tax sharing agreements, and including distributions for Related Taxes).
“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 Company or any Guarantor immediately prior to such date of determination.
“Non-Financing Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease in accordance with GAAP. For the avoidance of doubt, an operating lease
shall be considered a Non-Financing Lease Obligation.
“Non-Guarantor Subsidiary” means any Restricted Subsidiary of the Company that is
not a Guarantor.
“Non-Note Party” means any Restricted Subsidiary of the
Company that is not a Note Party.
“Non-U.S. Person” means a Person who is not
a U.S. Person (as defined in Regulation S).
“Note Documents” means the Notes (including Additional Notes), the Note
Guarantees, the Notes Collateral Documents and this Indenture.
“Note Guarantees” means the Guarantees of the Initial
Notes and any Additional Notes.
“Note Parties” means the Issuer and the Guarantors.
“Notes” has the meaning ascribed to it in the recitals of this Indenture.
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“Notes Collateral Agent” means Regions Bank, in its capacity as
collateral agent for the holders of the Notes Obligations under this Indenture and the Notes Collateral Documents and any successor pursuant to the provisions of this Indenture and the Notes Collateral Documents.
“Notes Collateral Documents” means, collectively, the Junior Lien Intercreditor Agreement, the Second Lien Intercreditor
Agreement any other intercreditor agreements entered into from time to time, the Notes Security Documents and the supplements thereto.
“Notes Custodian” means the custodian with respect to the Global Notes (as appointed by DTC) or any successor Person
thereto, and shall initially be the Trustee.
“Notes Obligations” means the Obligations in respect of the Notes, this
Indenture, the Guarantees relating to the Notes, the Notes Collateral Documents and the other Note Documents.
“Notes Secured
Parties” means the Trustee, the Notes Collateral Agent and the Holders of the Notes.
“Notes Security
Agreement” means that certain Security Agreement, dated as of the Issue Date, among the Company, the Guarantors party thereto from time to time and the Notes Collateral Agent, as it may be amended, supplemented, restated, replaced or
otherwise modified from time to time pursuant to this Indenture.
“Notes Security Documents” means the Notes Security
Agreement, each joinder to the Notes Security Agreement, all security agreements, pledge agreements, control agreements, collateral assignments, mortgages, deeds of trust or other grants or transfers for security or agreements related thereto
executed and delivered by the Company or any Guarantor pursuant to which a Lien is granted (or purported to be granted) in favor of the Notes Collateral Agent on behalf of itself, the Trustee, the Holders and the other Notes Secured Parties to
secure the Notes and the Note Guarantees, in each case, as amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time.
“Obligations” means any principal, interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for Post-Petition Interest is allowed or allowable in such proceedings), penalties, fees, indemnifications, reimbursements (including, without
limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
“Officer” means, with respect to any Person, (1) the Chairman of the Board of Directors, the Chief Executive Officer,
the President, the Chief Financial Officer, any Executive Vice President, any Vice President, the Treasurer, any Managing Director, or the Secretary (a) of such Person or (b) if such Person is owned or managed by a single entity, of such
entity, or (2) any other individual designated as an “Officer” for the purposes of this Indenture by the Board of Directors of such Person.
“Officer’s Certificate” means, with respect to any Person, a certificate signed by one Officer of such Person.
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“Opinion of Counsel” means a written opinion from legal counsel who is
reasonably satisfactory to the Trustee. The counsel may be an employee of or counsel to the Company or its Subsidiaries.
“Parent
Entity” means any direct or indirect parent of the Company.
“Parent Entity Expenses” means:
(1)
costs (including all professional fees and expenses) Incurred by any Parent Entity in connection with reporting
obligations under or otherwise Incurred in connection with compliance with applicable laws, rules or regulations of any governmental, regulatory or self-regulatory body or stock exchange, this Indenture or any other agreement or instrument relating
to the Notes, the Guarantees or any other Indebtedness of the Company or any Restricted Subsidiary, including in respect of any reports filed or delivered with respect to the Securities Act, Exchange Act or the respective rules and regulations
promulgated thereunder;
(2)
customary salary, bonus, severance, indemnity, insurance (including premiums therefor) and other benefits
payable to any employee, director, officer, manager, contractor, consultant or advisor of any Parent Entity or other Persons under its articles, charter, by-laws, partnership agreement or other organizational
documents or pursuant to written agreements with any such Person to the extent relating to the Company and its Subsidiaries;
(3)
obligations of any Parent Entity in respect of director and officer insurance (including premiums therefor) to
the extent relating to the Company and its Subsidiaries;
(4)
(x) general corporate operating and overhead fees, costs and expenses, (including all legal, accounting and
other professional fees, costs and expenses) and, following the first public offering of the Company’s Capital Stock or the Capital Stock of any Parent Entity, listing fees and other costs and expenses attributable to being a publicly traded
company of any Parent Entity and (y) other operational expenses of any Parent Entity related to the ownership or operation of the business of the Company or any of its Restricted Subsidiaries;
(5)
expenses Incurred by any Parent Entity in connection with (i) any offering, sale, conversion or exchange
of Capital Stock or Indebtedness (whether or not successful) and (ii) any related compensation paid to employees, directors, officers, managers, contractors, consultants or advisors (or their respective Controlled Investment Affiliates or
Immediate Family Members) of such Parent Entity;
(6)
amounts payable pursuant to any management services or similar agreements or the management services provisions
in an investor rights agreement or other equityholders’ agreement in effect on the Issue Date (including any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the
reasonable determination of the Company to the Holders when taken as a whole, as compared to the management services or similar agreements as in effect immediately prior to such amendment or replacement), solely to the extent such amounts are not
paid directly by the Company or its Subsidiaries; and
48
(7)
amounts to finance Investments that would otherwise be permitted to be made pursuant to
Section 3.3 hereof if made by the Company; provided, that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment, (B) such direct or indirect parent company
shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Company or one of its Restricted Subsidiaries or (2) the merger, consolidation or
amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 4.1 hereof) in order to consummate such Investment, (C) such direct or
indirect parent company and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have
given such consideration or made such payment in compliance with this Indenture and such consideration or other payment is included as a Restricted Payment under this Indenture, (D) any property received by the Company shall not increase
amounts available for Restricted Payments pursuant to Section 3.3(a)(iii) and (E) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary pursuant to another provision of this covenant
or pursuant to the definition of “Permitted Investment.”
“Pari Passu Indebtedness” means
Indebtedness of the Company which ranks equally in right of payment to the Notes or of any Guarantor if such Indebtedness ranks equally in right of payment to the Guarantees of the Notes.
“Pari Passu Lien Priority” means, relative to specified Indebtedness, Indebtedness for borrowed money that has equal Lien
priority on the Collateral and is subject to the Second Lien Intercreditor Agreement.
“Paying Agent” means any Person
authorized by the Company to pay the principal of (and premium, if any) or interest on any Note on behalf of the Company.
“Permitted Acquisition” means the purchase or other acquisition of property and assets or businesses of any Person or of
assets constituting a business unit, a line of business or division of such Person, or equity interests in a Person that, upon the consummation thereof, will be (or such assets will be contributed to) a Restricted Subsidiary (including as a result
of a merger or consolidation).
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of assets
used or useful in a Similar Business or a combination of such assets and cash, Cash Equivalents between the Company or any of its Restricted Subsidiaries and another Person, in each case, for at least reasonably equivalent value (as determined by
the Company in good faith); provided that any cash or Cash Equivalents received in excess of the value of any assets, cash or Cash Equivalents sold or exchanged must be applied in accordance with Section 3.5 hereof.
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“Permitted Holders” means, collectively, (i) the Management
Stockholders (including any Management Stockholders holding Capital Stock through an equityholding vehicle), (ii) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any Parent Entity
or the Company, acting in such capacity, (iii) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing, any Holding Company 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 (iii), collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Company or any Parent Entity held by such group, and (iv) any Holding
Company. Any Person or group whose acquisition of beneficial ownership constitutes a Change of Control in respect of which a Change of Control Offer is made or waived in accordance with the requirements of this Indenture, will thereafter, together
with its Affiliates, constitute an additional Permitted Holder.
“Permitted Intercompany Activities” means any
transactions (A) between or among the Company and its Restricted Subsidiaries that are entered into in the ordinary course of business or consistent with past practice of the Company and its Restricted Subsidiaries and, in the reasonable
determination of the Company are necessary or advisable in connection with the ownership or operation of the business of the Company and its Restricted Subsidiaries, including (i) payroll, cash management, purchasing, insurance and hedging
arrangements; (ii) management, technology and licensing arrangements; and (iii) customary loyalty and rewards programs; and (B) between or among the Company, its Restricted Subsidiaries and any Captive Insurance Subsidiary.
“Permitted Investment” means (in each case, by the Company or any of its Restricted Subsidiaries):
(1)
Investments (a) by any Note Party in any other Note Party or a Person (including the Capital Stock of any
such Person) that will, upon the making of such Investment, become a Note Party, (b) by any Non-Note Party in any Note Party or a Person (including the Capital Stock of any such Person) that will, upon
the making of such Investment, become a Note Party, (c) by any Non-Note Party in any other Non-Note Party and (d) by any Note Party in any Non-Note Party; provided that the aggregate amount of such Investments in Non-Note Parties pursuant to clause (d) shall not exceed the greater of (i)
$50 million and (ii) 15.0% of LTM EBITDA (excluding any Investments received in respect of, or consisting of, the transfer or contribution of equity interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary) (with
the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(2)
Investments held by another Person if such Person is engaged, directly or through entities that will be
Restricted Subsidiaries, in any Similar Business and as a result of such Investment such other Person, in one transaction or a series of transactions, is merged, amalgamated, consolidated or otherwise combined with or into, or transfers or conveys
all or substantially all its assets (or such division, business unit,
50
product line or business) to, or is liquidated into, the Company or a Restricted Subsidiary or becomes a Note Party in accordance with clause (1); provided that such Investment was not
acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, combination, transfer or conveyance;
(3)
Investments in cash, Cash Equivalents or Investment Grade Securities;
(4)
Investments in receivables owing to the Company or any Restricted Subsidiary created or acquired in the
ordinary course of business or consistent with past practice;
(5)
Investments in payroll, travel and similar advances to cover matters that are expected at the time of such
advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business or consistent with past practice;
(6)
Management Advances;
(7)
Investments received in settlement, compromise or resolution of debts created in the ordinary course of
business or consistent with past practice and owing to the Company or any Restricted Subsidiary or in exchange for any other Investment or accounts receivable, endorsements for collection or deposit held by the Company or any such Restricted
Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement including upon the bankruptcy or insolvency of a debtor or litigation,
arbitration or other disputes or otherwise with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(8)
Investments made as a result of the receipt of promissory notes or other
non-cash consideration (including earn-outs) from a sale or other disposition of property or assets, including an Asset Disposition;
(9)
Investments existing or pursuant to binding commitments, agreements or arrangements in effect on the Issue Date
and any modification, replacement, renewal, refinancing, reinvestment or extension thereof; provided that the amount of any such Investment may not be increased except (i) as required by the terms of such Investment or binding commitment
as in existence on the Issue Date (including in respect of any unused commitment), plus any accrued but unpaid interest (including any accretion of interest, original issue discount or the issuance of pay-in-kind securities) and premium payable by the terms of such Indebtedness thereon and fees and expenses associated therewith as of the Issue Date or (ii) as otherwise permitted under this Indenture;
(10)
Hedging Obligations, which transactions or obligations are Incurred in compliance with
Section 3.2 hereof;
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(11)
pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of
business or Liens otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Section 3.6 hereof;
(12)
any Investment to the extent made using Capital Stock of the Company (other than Disqualified Stock) or Capital
Stock of any Parent Entity as consideration;
(13)
any transaction to the extent constituting an Investment that is permitted by and made in accordance with
Section 3.8(b) hereof (except those described in clauses (1), (6), (7), (8), (9) and (25) of Section 3.8(b));
(14)
Investments consisting of (i) purchases or other acquisitions of inventory, supplies, materials, equipment
and similar assets or (ii) licenses, sublicenses, cross-licenses, leases, subleases, assignments, contributions or other Investments of intellectual property or other intangibles or services in the ordinary course of business pursuant to any
joint development, joint venture or marketing arrangements with other Persons or any Intercompany License Agreement and any other Investments made in connection therewith;
(15)
(i) Guarantees of Indebtedness not prohibited by Section 3.2 hereof and (other than
with respect to Indebtedness) guarantees, keepwells and similar arrangements in the ordinary course of business, and (ii) performance guarantees with respect to obligations that are not prohibited by this Indenture;
(16)
Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of
intent, or other acquisitions to the extent not otherwise prohibited by this Indenture;
(17)
Investments of a Restricted Subsidiary acquired after the Issue Date or of an entity merged or amalgamated into
the Company or merged or amalgamated into or consolidated with a Restricted Subsidiary after the Issue 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, amalgamation or consolidation;
(18)
any Investment in any Subsidiary or any joint venture in the ordinary course of business or consistent with
past practice (including any cash management arrangements, cash pooling arrangements, intercompany loans or activities related thereto);
(19)
Investments in the ordinary course of business or consistent with past practice consisting of licensing of
intellectual property pursuant to joint marketing arrangements with other Persons;
(20)
contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to
claims of creditors in the case of a bankruptcy of the Company;
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(21)
[reserved];
(22)
additional Investments having an aggregate fair market value, taken together with all other Investments made
pursuant to this clause (22) that are at that time outstanding, not to exceed the greater of $35 million and 10.0% of LTM EBITDA (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 is made in any person that is not the Company or a Restricted Subsidiary at the date of the making of such Investment and such person becomes the
Company or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause;
(23)
[reserved];
(24)
(i) Investments arising in connection with a Qualified Securitization Financing or Receivables Facility and
(ii) distributions or payments of Securitization Fees and purchases of Securitization Assets or Receivables Assets in connection with a Qualified Securitization Financing or Receivables Facility;
(25)
Investments in connection with the Transactions;
(26)
repurchases of Notes or First Lien Notes;
(27)
[reserved];
(28)
guaranty and indemnification obligations arising in connection with surety bonds or similar obligations issued,
made or incurred in the ordinary course of business or consistent with past practice;
(29)
Investments (a) consisting of purchases and acquisitions of assets or services in the ordinary course of
business or consistent with past practice, (b) made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client, franchisee and customer contracts and loans or
(c) advances, loans, extensions of credit (including the creation of receivables) or prepayments made to, and guarantees with respect to obligations of, franchisees, distributors, suppliers, lessors, licensors and licensees in the ordinary
course of business or consistent with past practice;
(30)
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;
(31)
Investments consisting of UCC Article 3 endorsements for collection or deposit and Article 4 trade arrangements
with customers (or any comparable or similar provisions in other applicable jurisdictions) in the ordinary course of business or consistent with past practices;
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(32)
any Investment by or in any Captive Insurance Subsidiary in connection with the provision of insurance to the
Company or any 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;
(33)
non-cash Investments in connection with tax planning and reorganization
activities, and Investments in connection with a Permitted Intercompany Activities or Permitted Tax Restructuring;
(34)
Investments made from casualty insurance proceeds in connection with the replacement, substitution, restoration
or repair of assets on account of a Casualty Event; and
(35)
so long as no Event of Default has occurred and is continuing, any other Investment so long as, immediately
after giving pro forma effect to the Investment and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated Total Leverage Ratio shall be no greater than 2.75 to 1.00.
Notwithstanding anything herein to the contrary, the Company and its Restricted Subsidiaries may not make any Investment in any Unrestricted
Subsidiary (including any Investment made or deemed to be made upon designation of any Subsidiary as an Unrestricted Subsidiary) or otherwise transfer any property to any Unrestricted Subsidiary without the written consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes.
“Permitted Liens” means, with respect to any
Person:
(1)
Liens on assets or property of a Non-Guarantor Subsidiary securing
Indebtedness and other Obligations of any Non-Guarantor Subsidiary;
(2)
pledges, deposits or Liens (a) in connection with workmen’s compensation laws, payroll Taxes,
unemployment insurance laws, employers’ health Tax and other social security laws or similar legislation or other insurance related obligations (including in respect of deductibles, self-insured retention amounts and premiums and adjustments
thereto), (b) securing liability, reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instruments) for the benefit of insurance carriers under insurance or
self-insurance arrangements or otherwise supporting the payments of items set forth in the foregoing clause (a), or (c) in connection with bids, tenders, completion guarantees, contracts, leases, utilities, licenses, public or statutory
obligations, or to secure the performance of bids, trade contracts, government contracts and leases, statutory obligations, surety, stay, indemnity, warranty, release, judgment, customs, appeal, performance bonds, guarantees of government contracts,
return of money bonds, bankers’ acceptance facilities and obligations of a similar nature (including those to secure health, safety and environmental
54
obligations), and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, or as security for contested Taxes or import or
customs duties or for the payment of rent, or other obligations of like nature, in each case incurred in the ordinary course of business or consistent with past practice;
(3)
Liens with respect to outstanding motor vehicle fines and Liens imposed by law or regulation, including
carriers’, warehousemen’s, mechanics’, landlords’, suppliers’, materialmen’s, repairmen’s, architects’, construction contractors’ or other similar Liens, in each case for amounts not overdue for
a period of more than 60 days or, if more than 60 days overdue, are unfiled and no other action has been taken to enforce such Liens or that are being contested in good faith by appropriate proceedings;
(4)
Liens for Taxes (i) that are not overdue for a period of more than 60 days or not yet payable or subject
to penalties for nonpayment or that are being contested in good faith by appropriate proceedings; provided that appropriate reserves required pursuant to GAAP (or other applicable accounting principles) have been made in respect thereof,
(ii) that would not reasonably be expected to have a material adverse effect or (iii) for property Taxes on property of the Company or one of its Subsidiaries that the Company (or the applicable Subsidiary) has determined to abandon if the
sole recourse for such Tax is to such property;
(5)
encumbrances, charges, ground leases, easements (including reciprocal easement agreements), survey exceptions,
restrictions, encroachments, protrusions, by-law, regulation, zoning restrictions 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, exceptions on title
policies insuring Liens granted on any mortgaged properties or any other collateral or Liens incidental to the conduct of the business of such Person or to the ownership of its properties, including servicing agreements, development agreements, site
plan agreements, subdivision agreements, facilities sharing agreements, cost sharing agreements and other similar agreements, charges or encumbrances, which do not in the aggregate materially interfere with the ordinary course conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole;
(6)
Liens (a) securing Hedging Obligations, Cash Management Obligations and the costs thereof; (b) that
are rights of set-off, rights of pledge or other bankers’ Liens (i) relating to treasury, depository and cash management services or any automated clearing house transfers of funds in the ordinary
course of business or consistent with past practice, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary or
consistent with past practice or (iii) relating to purchase orders and other agreements entered into with customers of the Company or any Restricted Subsidiary in the ordinary course of business or
55
consistent with past practice; (c) on cash accounts securing Indebtedness and other Obligations permitted to be incurred under Section 3.2(b)(8)(e) with financial institutions;
(d) 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; and (e) (i) of a collection bank arising under Section 4-210 of the UCC or any comparable or successor provision on items in the course of collection and (ii) in favor
of a banking or other financial institution or electronic payment service providers arising as a matter of law encumbering deposits (including the right of set-off) arising in the ordinary course of business
in connection with the maintenance of such accounts and (iii) arising under customary general terms and conditions of the account bank in relation to any bank account maintained with such bank and attaching only to such account and the products
and proceeds thereof, which Liens, in any event, do not secure any Indebtedness;
(7)
leases, licenses, subleases and sublicenses of assets (including real property, intellectual property, software
and other technology rights), in each case entered into in the ordinary course of business, consistent with past practice or, with respect to intellectual property, software and other technology rights, that are not material to the conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole;
(8)
Liens securing or otherwise arising out of judgments, decrees, attachments, orders or awards not giving rise to
an Event of Default under Section 6.1(a)(5);
(9)
(a) Liens securing Finance Lease Obligations, or Purchase Money Obligations, or securing the payment of all or
a part of the purchase price of, or securing Indebtedness or other Obligations incurred to finance or refinance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business;
provided that (i) the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be incurred under this Indenture and (ii) any such Liens may not extend to any assets or property of the Company or any
Restricted Subsidiary other than assets and property affixed or appurtenant thereto and accessions, additions, improvements, proceeds, dividends or distributions thereof, including after-acquired property that is (A) affixed or incorporated
into the property or assets covered by such Lien, (B) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and
(C) the proceeds and products thereof and (b) any interest or title of a lessor, sublessor, franchisor, licensor or sublicensor or secured by a lessor’s, sublessor’s, franchisor’s, licensor’s or sublicensor’s
interest under any Finance Lease Obligations or Non-Financing Lease Obligations;
(10)
Liens arising from UCC financing statements, including precautionary financing statements (or similar filings)
regarding operating leases or consignments entered into by the Company and its Restricted Subsidiaries;
56
(11)
Liens existing on the Issue Date, but excluding Liens securing the Credit Agreements and the First Lien Notes
and related Guarantees;
(12)
Liens on property, other assets or shares of stock of a Person at the time such Person becomes a Subsidiary (or
at the time the Company or a Subsidiary acquires such property, other assets or shares of stock, including any acquisition by means of a merger, amalgamation, consolidation or other business combination transaction with or into the Company or any
Restricted Subsidiary); provided, however, that such Liens are not created in anticipation of such other Person becoming a Subsidiary (or such acquisition of such property, other assets or stock); provided, further, that
such Liens are limited to all or part of the same property, other assets or stock (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds, dividends or distributions thereof, including
after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or
include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the Obligations relating to any Indebtedness or
other obligations to which such Liens relate;
(13)
Liens securing Obligations relating to any Indebtedness or other obligations of the Company or a Restricted
Subsidiary owing to the Company or another Restricted Subsidiary (provided that, solely with respect to Indebtedness required to be subordinated under Section 3.2(b)(3), such Lien shall be subordinated to the Liens on the
Collateral securing the Notes), or Liens in favor of the Company or any Restricted Subsidiary or the Trustee;
(14)
Liens securing Refinancing Indebtedness incurred to refinance Indebtedness that was previously so secured, and
permitted to be secured under this Indenture; provided that any such Lien is limited to all or part of the same property or assets (plus property and assets affixed or appurtenant thereto and additions, improvements, accessions, proceeds,
dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien securing such
Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) that secured (or, under the written arrangements under which the original Lien arose,
could secure) the Obligations relating to the Indebtedness or other obligations being refinanced or is in respect of property or assets that is or could be the security for or subject to a Permitted Lien hereunder;
(15)
(a) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have
been placed by any government, statutory or regulatory authority, developer, landlord or other third party on property over which the Company or any Restricted Subsidiary has easement rights or on any leased property and subordination or similar
arrangements relating thereto and (b) any condemnation or eminent domain proceedings affecting any real property;
57
(16)
any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint
venture securing financing arrangement, joint venture or similar arrangement pursuant to any joint venture securing financing agreement, joint venture or similar agreement;
(17)
Liens on property or assets under construction (and related rights) in favor of a contractor or developer or
arising from progress or partial payments by a third party relating to such property or assets;
(18)
Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for
the sale or purchase of goods entered into in the ordinary course of business or consistent with past practice;
(19)
Liens securing Indebtedness and other Obligations in respect of (a) Credit Facilities, including any
letter of credit facility relating thereto, under Section 3.2(b)(1) and (b) obligations of the Company or any Subsidiary in respect of any Cash Management Obligation or Hedging Obligation provided by any lender party
to any Credit Facility or Affiliate of such lender (or any Person that was a lender or an Affiliate of a lender at the time the applicable agreements in respect of such Cash Management Obligation or Hedging Obligation were entered into);
(20)
Liens securing Indebtedness and other Obligations under Section 3.2(b)(5);
provided that such Liens shall only be permitted if such Liens are limited to all or part of the same property or assets, including Capital Stock (plus property and assets affixed or appurtenant thereto and additions, improvements,
accessions, proceeds, dividends or distributions thereof, including after-acquired property that is (i) affixed or incorporated into the property or assets covered by such Lien, (ii) after-acquired property or assets subject to a Lien
securing such Indebtedness, the terms of which Indebtedness require or include a pledge of after-acquired property or assets and (iii) the proceeds and products thereof) acquired, or of any Person acquired or merged, consolidated or amalgamated
with or into the Company or any Restricted Subsidiary, in any transaction to which such Indebtedness or other Obligation relates;
(21)
[reserved];
(22)
[reserved];
(23)
Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness or
other obligations of such Unrestricted Subsidiary;
(24)
Liens deemed to exist in connection with Investments permitted under clause (4) of the definition of
“Cash Equivalents”;
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(25)
Liens on (i) goods the purchase price of which is financed by a documentary letter of credit issued for
the account of the Company or any Subsidiary or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar
instruments and (ii) specific items of inventory or other goods and proceeds of any Person securing such Person’s 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; provided that any such Liens attach only to the goods and inventory covered thereby and proceeds thereof;
(26)
Liens on vehicles or equipment of the Company or any Restricted Subsidiary in the ordinary course of business
or consistent with past practice;
(27)
Liens on assets or securities deemed to arise in connection with and solely as a result of the execution,
delivery or performance of contracts to sell such assets or securities if such sale is otherwise not prohibited by this Indenture;
(28)
(a) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect
thereto, and (b) Liens, pledges, deposits made or other security provided to secure liabilities to, or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefits of), insurance
carriers in the ordinary course of business or consistent with past practice;
(29)
Liens solely on any cash earnest money deposits made in connection with any letter of intent or purchase
agreement permitted under this Indenture;
(30)
Liens (i) on cash advances or escrow deposits in favor of 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 otherwise in connection with any escrow arrangements with respect to any such Investment (including any letter of intent or purchase agreement
with respect to such Investment), and (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose of any property in an asset sale, in each case, solely to the extent such Investment or sale, transfer, lease or other
disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
(31)
Liens securing Indebtedness and other Obligations in an aggregate principal amount not to exceed the greater of
(a) $50 million and (b) 15.0% of LTM EBITDA at the time incurred; provided that, to the extent such Lien is secured by the Collateral, such Lien expressly has Pari Passu Lien Priority or Junior Lien Priority relative to the Notes
and related Note Guarantees;
(32)
Liens on cash deposits not to exceed $25 million in the aggregate at any time outstanding for the purpose
of collateralizing certain financial obligations under any workers’ compensation, unemployment insurance and other types of social security in the ordinary course;
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(33)
[reserved];
(34)
Liens deemed to exist in connection with Investments in repurchase agreements permitted by the covenant
described under Section 3.3, provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement;
(35)
Liens arising in connection with a Qualified Securitization Financing or a Receivables Facility;
(36)
Settlement Liens;
(37)
rights of recapture of unused real property in favor of the seller of such property set forth in customary
purchase agreements and related arrangements with any government, statutory or regulatory authority;
(38)
the rights reserved to or vested in any Person or government, statutory or regulatory authority by the terms of
any lease, license, franchise, grant or permit held by the Company or any Restricted Subsidiary or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition
to the continuance thereof;
(39)
restrictive covenants affecting the use to which real property may be put and Liens or covenants restricting or
prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided that such Liens or covenants do not interfere with the ordinary conduct of the business of the
Company or any Restricted Subsidiary;
(40)
Liens on property, assets or Permitted Investments used to defease or to satisfy or discharge Indebtedness;
provided that such defeasance, satisfaction or discharge is not prohibited by this Indenture;
(41)
Liens relating to escrow arrangements securing Indebtedness, including (i) Liens on escrowed proceeds from
the issuance of Indebtedness for the benefit of the related holders of debt securities or other Indebtedness (or the underwriters, arrangers, trustee or collateral agent thereof) and (ii) Liens on cash or Cash Equivalents set aside at the time
of the incurrence of any Indebtedness, in either case to the extent such cash or Cash Equivalents prefund the payment of interest or premium or discount on such Indebtedness (or any costs related to the issuance of such Indebtedness) and are held in
an escrow account or similar arrangement to be applied for such purpose;
(42)
Liens securing (i) the Notes (other than any Additional Notes) and the related Note Guarantees,
(ii) Indebtedness incurred pursuant to Section 3.2(b)(4)(e) and (iii) Indebtedness incurred pursuant to Section 3.2(b)(11); provided that any such Indebtedness pursuant to clauses
(i) and (iii) shall be subject to the Junior Lien Intercreditor Agreement;
60
(43)
Liens on assets securing any Indebtedness owed to any Captive Insurance Subsidiary by the Company or any
Restricted Subsidiary;
(44)
Liens arising in connection with any Permitted Intercompany Activities or Permitted Tax Restructuring; and
(45)
with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by law.
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 Company 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 Tax Distribution” means:
(a)
if and for so long as the Company is a member (or is an entity treated as disregarded from a member) of a group
filing a consolidated, group, affiliate, unitary, combined or similar Tax return with any Parent Entity, any dividends or other distributions to fund any income or similar Taxes for which such Parent Entity is liable up to an amount not to exceed
with respect to such Taxes the amount of any such Taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis or on a consolidated basis calculated as if the Company and its Subsidiaries had paid Tax on a
consolidated, combined, group, affiliated, unitary or similar basis on behalf of a consolidated, combined, affiliated, unitary or similar group consisting only of the Company and its Subsidiaries; and
(b)
for any taxable year (or portion thereof) ending after the Issue Date for which the Company is treated as a
disregarded entity, partnership, or other flow-through entity for federal, state, provincial, territorial, and/or local income Tax purposes, the payment of dividends or other distributions to the Company’s direct owner(s) to fund the income
Tax liability of such owner(s) (or, if a direct owner is a pass-through entity, of the indirect owner(s)) for such taxable year (or portion thereof) attributable to the operations and activities of the Company and its direct and indirect
Subsidiaries, in an aggregate amount not the exceed the product of (x) the highest combined marginal federal and applicable state, provincial, territorial, and/or local statutory income Tax rate (after taking into account the deductibility of
U.S. state and local income Tax for U.S. federal income Tax purposes) and (y) the taxable income of the Company for such taxable year (or portion thereof).
“Permitted Tax Restructuring” means any reorganizations and other activities related to tax planning and tax reorganization
(as determined by the Company in good faith) so long as such Permitted Tax Restructuring is not materially adverse to the beneficial owners of the Notes.
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“Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the
commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.11 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Stock” as applied to the
Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
“Public Company Costs” means, as to any
Person, 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 and costs relating to compliance with the
provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to enhanced accounting
functions and investor relations, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising
solely by virtue of the listing of such Person’s equity securities on a national securities exchange or issuance of public debt securities.
“Purchase Money Obligations” means any Indebtedness Incurred to finance or refinance the acquisition, leasing, expansion,
construction, installation, replacement, repair or improvement of property (real or personal), equipment or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets, or the acquisition of the
Capital Stock of any Person owning such property or assets, or otherwise.
“QIB” means any “qualified
institutional buyer” as such term is defined in Rule 144A.
“Qualified Securitization Financing” means any
Securitization Facility that meets the following conditions: (i) the Board of Directors shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and other provisions) is in
the aggregate economically fair and reasonable to the Company and its Restricted Subsidiaries, (ii) all sales of Securitization Assets and related assets by the Company or any Restricted Subsidiary to the Securitization Subsidiary or any other
Person are made for fair consideration (as determined in good faith by the Company) and (iii) the financing terms, covenants, termination events and other provisions thereof shall be fair and reasonable terms (as determined in good faith by the
Company) and may include Standard Securitization Undertakings. The Receivables Securitization Program will be deemed to be a Qualified Securitization Financing.
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“Receivables Assets” means (a) any accounts receivable owed to the
Company or a Restricted Subsidiary subject to a Receivables Facility and the proceeds thereof and (b) all collateral securing such accounts receivable, all contracts and contract rights, guarantees or other obligations in respect of such
accounts receivable, all records with respect to such accounts receivable and any other assets customarily transferred together with accounts receivable in connection with a non-recourse accounts receivable
factoring arrangement.
“Receivables Facility” means an arrangement between the Company or a Subsidiary and a
commercial bank, an asset based lender or other financial institution or an Affiliate thereof pursuant to which (a) the Company or such Subsidiary, as applicable, sells (directly or indirectly) to such commercial bank, asset based lender or
other financial institution (or such Affiliate) Receivables Assets and (b) the obligations of the Company or such Restricted Subsidiary, as applicable, thereunder are non-recourse (except for
Securitization Repurchase Obligations) to the Company and such Subsidiary and (c) the financing terms, covenants, termination events and other provisions thereof shall be on market terms (as determined in good faith by the Company) and may
include Standard Securitization Undertakings, and shall include any guaranty in respect of such arrangements.
“Receivables
Securitization Program” means the Securitization Facility entered into in respect of its Receivable Assets under the Receivables Purchase Agreement, dated as of October 18, 2025, by and among Accendra Medical, LLC (f/k/a
Owens & Minor Medical, LLC), as the initial servicer, Accendra Funding LLC (f/k/a O&M Funding LLC), as seller, the purchasers from time to time party thereto, PNC Bank, National Association, as administrative agent, and PNC Capital
Markets LLC, as structuring agent, and as amended and restated by that certain Amended and Restated Receivables Purchase Agreement, dated as of December 31, 2025, by and among Byram Healthcare Centers, Inc., as the initial servicer, Accendra
Funding LLC (f/k/a O&M Funding LLC), as seller, the purchasers from time to time party thereto, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC, as structuring agent, and as further amended, supplemented,
modified, extended, renewed, restated or refinanced from time to time.
“refinance” means refinance, refund, replace,
renew, repay, modify, restate, defer, substitute, supplement, reissue, resell, extend or increase (including pursuant to any defeasance or discharge mechanism) and the terms “refinances,” “refinanced” and
“refinancing” as used for any purpose in this Indenture shall have a correlative meaning.
“Refinancing
Indebtedness” means Indebtedness that is Incurred to refund, refinance, replace, exchange, renew, repay or extend (including pursuant to any defeasance or discharge mechanism) any Indebtedness existing on the Issue Date or Incurred in
compliance with this Indenture (including Indebtedness of the Company that refinances Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of the Company or another Restricted
Subsidiary) including Indebtedness that refinances Refinancing Indebtedness; provided, however, that:
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(1)
(a) such Refinancing Indebtedness 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 refunded or refinanced; and (b) to the extent such Refinancing Indebtedness
refinances Subordinated Indebtedness, Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Subordinated Indebtedness, Disqualified Stock or Preferred Stock, respectively, and, in the case of Subordinated Indebtedness, is
subordinated to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(2)
Refinancing Indebtedness shall not include:
(i)
Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Company that is not the Company or a
Guarantor that refinances Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Guarantor; or
(ii)
Indebtedness, Disqualified Stock or Preferred Stock of the Company or a Restricted Subsidiary that refinances
Indebtedness, Disqualified Stock or Preferred Stock of an Unrestricted Subsidiary;
(3)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount,
an aggregate issue price) that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value) then outstanding under the Indebtedness being Refinanced (plus (x) an amount
equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under a Credit Facility or other financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be
drawn in compliance with Section 3.2 immediately prior to such refinancing and (y) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs
and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such Refinancing).
Refinancing Indebtedness in respect of any Credit Facility or any other Indebtedness may be Incurred from time to time after the termination, discharge or
repayment of any such Credit Facility or other Indebtedness.
“Regulation S” means Regulation S under the Securities
Act.
“Regulation S-X” means Regulation
S-X under the Securities Act.
“Related Taxes” means
(1)
any Taxes, including sales, use, transfer, rental, ad valorem, value added, stamp, property,
consumption, franchise, license, capital, registration, business, customs,
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net worth, gross receipts, excise, occupancy, intangibles or similar Taxes and other similar fees and expenses (other than (x) Taxes measured by income and (y) withholding Taxes),
required to be paid (provided such Taxes are in fact paid) by any Parent Entity by virtue of its:
(a)
being organized or having Capital Stock outstanding (but not by virtue of owning stock or other equity
interests of any corporation or other entity other than, directly or indirectly, the Company or any of the Company’s Subsidiaries) or otherwise maintain its existence or good standing under applicable law;
(b)
being a holding company parent, directly or indirectly, of the Company or any of the Company’s
Subsidiaries;
(c)
receiving dividends from or other distributions in respect of the Capital Stock of, directly or indirectly, the
Company or any of the Company’s Subsidiaries; or
(d)
having made any payment in respect to any of the items for which the Company is permitted to make payments to
any Parent Entity pursuant to Section 3.3; or
(2) any Permitted Tax Distribution.
“Reserved Indebtedness Amount” has the meaning set forth in Section 3.2(c)(9).
“Restricted Investment” means any Investment other than a Permitted Investment.
“Restricted Notes” means Initial Notes and Additional Notes bearing the Restricted Notes Legend.
“Restricted Notes Legend” means the legend set forth in Section 2.1(d)(1).
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.
“Revolving Credit Agreement” means the Credit Agreement, dated as of March 10, 2021, as amended most recently on or
about the Issue Date, by and among Apria, Inc., Barista Acquisition I, LLC, Barista Acquisition II, LLC and Byram Healthcare Centers, Inc. and the Company as borrowers, the guarantors from time to time party thereto, Bank of America, N.A., as
administrative agent and collateral agent, a syndicate of financial institutions party thereto, the other agents party thereto, and each lender from time to time party thereto, together with the related documents thereto (including the revolving
loans thereunder, any letters of credit and reimbursement obligations related thereto, any Guarantees and security documents) and as further amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise
changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, including indentures, incurred to
refinance, substitute,
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supplement, replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the
borrowings and commitments then outstanding or permitted to be outstanding under such Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agreements.
“Revolving Credit Agreement Collateral Agent” means Bank of America, N.A., in its capacity as the collateral agent for the
“Secured Parties” as defined in the Revolving Credit Agreement, together with its successors and permitted assigns under the Revolving Credit Agreement.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Investors Ratings Services or any of its successors or assigns that is a
Nationally Recognized Statistical Rating Organization.
“Sale and Leaseback Transaction” means any arrangement
providing for the leasing by the Company 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 Company or such Restricted Subsidiary to a third Person in
contemplation of such leasing.
“Screened Affiliate” means any Affiliate of a Holder (i) that makes investment
decisions independently from such Holder 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 and any other Affiliate of such Holder that is not
a Screened Affiliate and such screens prohibit the sharing of information with respect to the Company or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder 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 any other Affiliate of such Holder that is acting in concert with such
Holders in connection with its investment in the Notes.
“SEC” means the U.S. Securities and Exchange Commission or any
successor thereto.
“Second Lien Intercreditor Agreement” means a customary (as determined by the Company and certified
to the Trustee and the Notes Collateral Agent in an Officer’s Certificate) pari passu second lien intercreditor agreement, with such changes as may be requested by the Notes Collateral Agent relating to its own rights and immunities, by and
among, the Notes Collateral Agent, the Company and the Guarantors party thereto, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time which shall also include any replacement intercreditor
agreement.
“Second Lien Obligations” means, collectively, (1) the Notes Obligations and (2) and any other
Additional Second Lien Obligations.
“Secured Indebtedness” means any Indebtedness secured by a Lien.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated
thereunder, as amended.
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“Securitization Asset” means (a) any accounts receivable, mortgage
receivables, loan receivables, royalty, franchise fee, license fee, patent or other revenue streams and other rights to payment or related assets and the proceeds thereof and (b) all collateral securing such receivable or asset, all contracts
and contract rights, guarantees or other obligations in respect of such receivable or asset, lockbox accounts and records with respect to such account or asset and any other assets customarily transferred (or in respect of which security interests
are customarily granted) together with accounts or assets in connection with a securitization, factoring or receivable sale transaction.
“Securitization Facility” means any of one or more securitization, financing, factoring or sales transactions, as amended,
supplemented, modified, extended, renewed, restated or refunded from time to time, pursuant to which the Company or any of the Restricted Subsidiaries sells, transfers, pledges or otherwise conveys any Securitization Assets (whether now existing or
arising in the future) to a Securitization Subsidiary or any other Person.
“Securitization Fees” means distributions
or payments made directly or by means of discounts with respect to any Securitization Asset or Receivables Asset or participation interest therein issued or sold in connection with, and other fees, expenses and charges (including commissions, yield,
interest expense and fees and expenses of legal counsel) paid in connection with, any Qualified Securitization Financing or Receivables Facility.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets or Receivables Assets in a
Qualified Securitization Financing or a Receivables Facility to repurchase or otherwise make payments with respect to Securitization Assets arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result
of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Securitization Subsidiary” means any Subsidiary of the Company in each case formed for the purpose of and that solely
engages in one or more Qualified Securitization Financings or Receivables Facilities and other activities reasonably related thereto or another Person formed for this purpose.
“Senior Lien Priority” means, relative to specified Indebtedness, Indebtedness for borrowed money that has senior Lien
priority on the Collateral and is subject to the First Lien Intercreditor Agreement.
“Series” means (a) (x) with
respect to the First Lien Secured Parties, each of (i) the Revolving Credit Agreement Secured Parties (in their capacities as such), (ii) Term Loan Credit Agreement Secured Parties (in their capacities as such), (iii) the First Lien Notes
Secured Parties (in their capacities as such) and (iv) the Additional First Lien Secured Parties (in their capacities as such) that become subject to the First Lien Intercreditor Agreement that are represented by a common Collateral Agent (in
its capacity as such for such Additional First Lien Secured Parties), (y) with respect to the Second Lien Secured Parties, each of (i) the Second Lien Notes Secured Parties (in their capacities as such) and (ii) the holders from time to
time of any Second Lien Obligations that are represented by a common representative (in its capacity as such for such Junior
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Lien Obligations) and (z) with respect to the Junior Lien Secured Parties, each of (i) the Junior Lien Notes Secured Parties (in their capacities as such) and (ii) the holders from
time to time of any Junior Lien Obligations that are represented by a common representative (in its capacity as such for such Junior Lien Obligations) and (b) (x) with respect to any First Lien Obligations, each of (i) the First Lien
Credit Agreement Obligations, (ii) the First Lien Notes Obligations and (iii) the Additional First Lien Obligations incurred after the Issue Date, the holders of which are to be represented by a common Collateral Agent (in its capacity as
such for such Additional First Lien Obligations) under the First Lien Intercreditor Agreement, (y) with respect to any Second Lien Obligations, each of (i) the Second Lien Obligations and (ii) the Additional Second Lien Obligations
incurred after the Issue Date, the holders of which are to be represented by a common Collateral Agent (in its capacity as such for such Additional Second Lien Obligations) under the Second Lien Intercreditor Agreement and (z) with respect to
any Junior Lien Obligations, each of (i) the Notes, (ii) the Junior Lien Obligations and (iii) the Additional Junior Lien Obligations incurred after the Issue Date, the holders of which are to be represented by a common Collateral
Agent (in its capacity as such for such Additional Junior Lien Obligations) under the Junior Lien Intercreditor Agreement.
“Settlement” means the transfer of cash or other property with respect to any credit or debit card charge, check or other
instrument, electronic funds transfer, or other type of paper-based or electronic payment, transfer, or charge transaction for which a Person acts as a processor, remitter, funds recipient or funds transmitter in the ordinary course of its business.
“Settlement Asset” means any cash, receivable or other property, including a Settlement Receivable, due or conveyed to
a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person or an Affiliate of such Person.
“Settlement Indebtedness” means any payment or reimbursement obligation in respect of a Settlement Payment.
“Settlement Lien” means any Lien relating to any Settlement or Settlement Indebtedness (and may include, for the avoidance
of doubt, the grant of a Lien in or other assignment of a Settlement Asset in consideration of a Settlement Payment, Liens securing intraday and overnight overdraft and automated clearing house exposure, and similar Liens).
“Settlement Payment” means the transfer, or contractual undertaking (including by automated clearing house transaction) to
effect a transfer, of cash or other property to effect a Settlement.
“Settlement Receivable” means any general
intangible, payment intangible, or instrument representing or reflecting an obligation to make payments to or for the benefit of a Person in consideration for a Settlement made or arranged, or to be made or arranged, by such Person.
“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.
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“Significant Subsidiary” means any Restricted Subsidiary that would be a
“significant subsidiary” as defined in Article 1, Rule 1-02(w)(1) 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 businesses, services or activities engaged in by the
Company or any of its Subsidiaries or any Associates on the Issue Date, (b) any businesses, services and activities engaged in by the Company or any of its Subsidiaries or any Associates that are related, complementary, incidental, ancillary or
similar to any of the foregoing or are extensions or developments of any thereof, and (c) a Person conducting a business, service or activity specified in clauses (a) and (b), and any Subsidiary thereof. For the avoidance of doubt, any
Person that invests in or owns Capital Stock or Indebtedness of another Person that is engaged in a Similar Business shall be deemed to be engaged in a Similar Business.
“Standard Securitization Undertakings” means representations, warranties, covenants, guarantees and indemnities entered
into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Securitization Facility or Receivables Facility, including those relating to the servicing of the assets of a Securitization
Subsidiary, it being understood that any Securitization Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking or, in the case of a Receivables Facility, a non-credit related
recourse accounts receivable factoring arrangement.
“Stated Maturity” means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Subordinated
Indebtedness” means (i) any Indebtedness (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the Notes pursuant to a written agreement, (ii) any Junior Lien
Obligations or (iii) any unsecured Indebtedness for borrowed money of any Note Party.
“Subsidiary” means, with
respect to any Person:
(1)
any corporation, association, or other business entity (other than a partnership, joint venture, limited
liability company or similar entity) of which more than 50% 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; or
(2)
any partnership, joint venture, limited liability company or similar entity of which:
(a)
more than 50% 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 interests or otherwise; and
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(b)
such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such
entity.
“Taxes” means all present and future taxes, levies, imposts, deductions, charges,
duties, assessments, fees and withholdings (including backup withholding) and any charges of a similar nature (however denominated and including interest, penalties and other liabilities with respect thereto) that are imposed by any governmental
authority or other taxing authority.
“Term Loan Credit Agreement” means the Term Loan Credit Agreement, dated as of
March 29, 2022, as amended most recently on or about the Issue Date, by and among the Apria, Inc., Barista Acquisition I, LLC, Barista Acquisition II, LLC, Byram Healthcare Centers, Inc. and the Company, as borrowers, the guarantors from time
to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, a syndicate of financial institutions party thereto, the other agents party thereto, and each lender from time to time party thereto, together with the
related documents thereto (including any Guarantees and security documents), and as further amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without
limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, including indentures, incurred to refinance, substitute, supplement,
replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the borrowings and commitments then outstanding or permitted to be
outstanding under such Credit Agreement or one or more successors to the Credit Agreement or one or more new credit agreements.
“Term Loan Credit Agreement Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the collateral agent for
the Term Loan Credit Agreement Secured Parties, together with its successors and permitted assigns under the Term Loan Credit Agreement.
“Total Assets” means, as of any date, the total consolidated assets of the Company and its Restricted Subsidiaries on a
consolidated basis, as shown on the most recent consolidated balance sheet of the Company and its Restricted Subsidiaries, determined on a pro forma basis in a manner consistent with the pro forma basis contained in the definition of Fixed Charge
Coverage Ratio.
“Transaction Expenses” means any fees, costs and expenses (including all legal, accounting and
other professional fees, costs and expenses) incurred or paid by the Company or any Restricted Subsidiary associated or in connection with the Transactions, including any fees, costs and expenses associated with payments or distributions to
dissenting stockholders (including in connection with, or as a result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential) with respect thereto).
“Transactions” means the issuance of the Notes, the issuance of the First Lien Notes and the use of proceeds therefrom, the
Exchange Offers, the amendment to the Term Loan Credit Agreement on or about the Issue Date, the amendment of or entry into, as applicable, the Revolving Credit Agreement on or about the Issue Date, the repayment of existing indebtedness, the
payment of fees, expenses and premiums incurred in connection with the foregoing and other related transactions and use of proceeds, in each case, as described in the Exchange Offering Memorandum.
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“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trust Officer” means, when used with respect to the Trustee or Notes Collateral Agent, any officer within the
Corporate Trust Office of the Trustee (or any successor group of the Trustee), including any vice president, assistant vice president, assistant secretary, 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 relating to this Indenture is referred because of such Person’s knowledge of and
familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
“Trustee” means Regions Bank, in its capacity as trustee under the Indenture, together with its successors and assigns.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided,
however, that at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of a collateral agent’s security interest in any item or portion of the collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such
perfection or priority and for purposes of definitions relating to such provisions.
“Unrestricted Subsidiary” means:
(1)
any Subsidiary (other than the Company or any direct or indirect parent entity of the Company) of the Company
that is designated by the Company in the manner provided below; and
(2)
any Subsidiary of an Unrestricted Subsidiary.
The Company may not designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary or a Person becoming a
Subsidiary through merger, consolidation or other business combination transaction, or Investment therein), to be an Unrestricted Subsidiary without the prior written consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes.
“U.S. Government Obligations” means securities that are (1) direct obligations of the United
States of America for the timely payment of which its full faith and credit is pledged, (2) 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 of the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, or (3) money market securities that invest
solely in the foregoing, and in the case of (1) and (2) above, shall also include a depositary receipt issued
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by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Obligations or a specific payment of principal of or interest on any
such U.S. Government Obligations held by such custodian for the account of the holder of such depositary 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 depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depositary receipt.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote
in the election of directors.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness, at any
date, the quotient obtained by dividing:
(1)
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
(2)
the sum of all such payments;
provided that, for purposes of determining the Weighted Average Life to Maturity of any Indebtedness, the effects of any prepayments or
amortization made on such Indebtedness prior to the date of such determination will 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.
“Wholly
Owned Domestic Subsidiary” means a Domestic Subsidiary of the Company, which is Wholly Owned by the Company or a Guarantor.
Section 1.2 Other Definitions.
Term
Defined in Section
Acceptable Commitment
3.5(a)(3)(ii)
Accounting Change
GAAP
Advance Offer
3.5(a)
Advance Portion
3.5(a)
Additional Restricted Notes
2.1(b)
Affiliate Transaction
3.8(a)
Agent Members
2.1(e)(2)
Applicable Premium Deficit
8.4(1)
Approved Foreign Bank
Cash Equivalents
Asset Disposition Offer
3.5(a)
Authenticating Agent
2.2
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Available Amount
3.3(a)(4)(iii)
Change of Control Offer
3.9(a)
Change of Control Payment
3.9(a)
Change of Control Payment Date
3.9(a)(2)
Clearstream
2.1(b)
Covenant Defeasance
8.3
Covenant Satisfaction Officer’s Certificate
6.1(a)
Declined Excess Proceeds
3.5(a)
Defaulted Interest
2.15
Directing Holder
6.1(a)
Election Date
3.3(b)
equity incentives
Consolidated Net Income
Euroclear
2.1(b)
Event of Default
6.1(a)
Excess Proceeds
3.5(a)
Excess Proceeds Percentage
3.5(a)
Final Decision
6.1(a)
Fixed Charge Coverage Ratio Calculation Date
Fixed Charge Coverage Ratio
Foreign Disposition
3.5(b)(i)
Global Notes
2.1(b)
Guaranteed Obligations
10.1
Increased Amount
3.6
Initial Agreement
3.4(a)(16)
Initial Default
6.1(c)
Issuer Order
2.2
Judgment Currency
13.19
LCT Election
1.4(c)
LCT Public Offer
1.4(c)
LCT Test Date
1.4(c)
Legal Defeasance
8.2
Legal Holiday
13.6
Litigation
6.1(a)
Notes Register
2.3
Noteholder Direction
6.1(a)
Performance References
Derivative Instrument
Permitted Debt
3.2(b)
Permitted Payments
3.3(b)
Position Representation
6.1(a)
primary obligations
Contingent Obligations
primary obligor
Contingent Obligations
Proceeds Application Period
3.5(a)(3)
protected purchaser
2.11
Redemption Date
5.7(a)
Registrar
2.3
Regulation S Global Note
2.1(b)
Regulation S Notes
2.1(b)
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Refunding Capital Stock
3.3(b)(2)
Resale Restriction Termination Date
2.6(b)
Reserved Indebtedness Amount
3.2(c)(9)
Restricted Payment
3.3(a)
Restricted Period
2.1(b)
Rule 144A Global Note
2.1(b)
Rule 144A Notes
2.1(b)
Special Interest Payment Date
2.15(a)
Special Record Date
2.15(a)
Successor Company
4.1(a)(1)
Suspended Covenants
3.21
Suspension Period
3.21
Treasury Capital Stock
3.3(b)(2)
Verification Covenant
6.1(a)
Verification Covenant Officer’s Certificate
6.1(a)
Section 1.3 [Reserved].
Section 1.4 Rules of Construction.
(a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or” is not exclusive;
(4) “including” means including without limitation;
(5) words in the singular include the plural and words in the plural include the singular;
(6) “will” shall be interpreted to express a command;
(7) 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;
(8) the principal amount of any preferred stock shall be (i) the maximum liquidation value of such preferred stock or
(ii) the maximum mandatory redemption or mandatory repurchase price with respect to such preferred stock, whichever is greater;
(9) all amounts expressed in this Indenture or in any of the Notes in terms of money refer to the lawful currency of the United
States of America;
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(10) the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(11) except as otherwise stated, (a) references herein to Articles, Sections and Exhibit mean the Articles and Sections of
and Exhibits to this Indenture and (b) each reference herein to a particular Article or Section includes the Sections, subsections and paragraphs subsidiary thereto; and
(12) unless otherwise specifically indicated, the term “consolidated” with respect to any Person refers to such
Person consolidated with its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.
(b) Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion thereof) is incurred or issued, any
Lien is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, 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 exceptions, thresholds or baskets (other than ratio based exceptions, thresholds and baskets) on the same date. Each item of Indebtedness that is incurred or issued, each Lien incurred and each other transaction
undertaken will be deemed to have been incurred, issued or taken first, to the extent available, pursuant to the relevant ratio based test.
Notwithstanding anything to the contrary herein, in the event an item of Indebtedness (or any portion thereof) is incurred or issued, any Lien
is incurred or other transaction is undertaken in reliance on any ratio based exceptions, thresholds and baskets, such ratio(s) shall be calculated without regard to the incurrence of any indebtedness to fund any OID or upfront fees to be paid in
connection with the incurrence of such Indebtedness on reliance of such ratio based exception.
Any calculation or measure that is
determined with reference to the Company’s financial statements (including Consolidated EBITDA, Consolidated Interest Expense, Consolidated Net Income, Fixed Charges, Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage
Ratio and Consolidated Total Leverage Ratio) may be determined with reference to the financial statements of a Parent Entity instead, so long as such Parent Entity does not hold any material assets other than, directly or indirectly, the Capital
Stock of the Company.
(c) When calculating the availability under any basket 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 and the use of proceeds
thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions), in each case, at the option of the Company (the Company’s election to exercise such option, an “LCT Election”), the date
of determination for availability under any such basket or ratio and 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 agreement for such Limited Condition Transaction is entered into (or, if
75
applicable, the date of delivery of an irrevocable declaration 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 applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction) (an “LCT Public Offer”) in respect of a
target of a 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 and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions) and any related pro forma adjustments, the Company 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, assumed 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 Company may elect, in its sole discretion, to redetermine all such ratios, tests or baskets on the basis of
such financial statements, in which case, such date of redetermination shall thereafter 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, test 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 transaction related thereto (including
acquisitions, Investments, the incurrence, issuance or assumption of Indebtedness and the use of proceeds thereof, the incurrence or creation of Liens, repayments, Restricted Payments and Asset Dispositions) and (c) Consolidated Interest
Expense for purposes of the Fixed Charge Coverage Ratio will be calculated using an assumed interest rate as reasonably determined by the Company.
For the avoidance of doubt, if the Company 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 as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in
EBITDA or Total Assets of the Company or the Person subject to such Limited Condition Transaction, 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;
(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 an Default or 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 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 or date for redemption, purchase or repayment specified in an
irrevocable notice for such Limited Condition Transaction is terminated, expires or passes (or, if applicable, the irrevocable notice is terminated, expires or passes or, as applicable, the offer in respect of an LCT Public Offer for, such
acquisition is terminated), 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.
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ARTICLE II
THE NOTES
Section 2.1
Form, Dating and Terms.
(a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture
is unlimited. The Initial Notes will be the Notes issued during the period beginning on the date hereof and ending on the Exchange Offer Final Settlement Date. In addition, the Issuer may issue, from time to time in accordance with the provisions of
this Indenture, Additional Notes (as provided herein). Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of, other Notes pursuant to Sections 2.2, 2.6, 2.11, 2.13,
5.6 or 9.5, in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Section 3.9.
Notwithstanding anything to the contrary contained herein, the Issuer may not issue any Additional Notes, unless such issuance is in
compliance with Section 3.2.
With respect to any Additional Notes, the Issuer shall set forth in one or more
indentures supplemental hereto, the following information:
(A) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(B) the issue price and the issue date of such Additional
Notes, including the date from which interest shall accrue; and
(C) whether such Additional Notes shall be Restricted
Notes.
In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in
relying upon, in addition to the Opinion of Counsel and Officer’s Certificate required by Section 13.2, an Opinion of Counsel as to the due authorization, execution, delivery, validity and enforceability of such
Additional Notes.
The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this
Indenture, provided that (i) the Initial Notes of any series may be issued in tranches represented by one or more CUSIP, ISIN or other identifying numbers in order to distinguish any Notes of any such series of Initial Notes that are not
fungible for U.S. federal income tax purposes and (ii) any Additional Notes will not be issued with the same CUSIP, ISIN or other identifying number as the Initial Notes unless such Additional Notes are fungible with the Initial Notes for U.S.
federal income tax purposes. Holders of the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the
Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.
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(b) The Initial Notes and any Additional Notes (if issued as Restricted Notes) (the
“Additional Restricted Notes”) will be offered and issued initially only to (A) Persons they reasonably believe to be QIBs in reliance on Rule 144A and (B) Non-U.S. Persons in
reliance on Regulation S. Such Initial Notes and Additional Restricted Notes may thereafter be transferred to, among others, persons reasonably believed to be QIBs and purchasers in reliance on Regulation S, in each case, in accordance with the
procedure described herein. Additional Notes offered after the date hereof may be offered and sold by the Issuer from time to time pursuant to one or more purchase agreements in accordance with applicable law.
Initial Notes and Additional Restricted Notes offered and sold to persons reasonably believed to be QIBs in the United States of America in
reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, which is hereby incorporated by reference and made a part of this Indenture,
including appropriate legends as set forth in Section 2.1(d) (the “Rule 144A Global Note”), deposited with the Trustee, as custodian for DTC, duly executed by the Issuer and authenticated by the Trustee
as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount
of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and any Additional Restricted Notes offered and sold to non-U.S. Persons outside the
United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global Note substantially in the form of Exhibit A, including appropriate legends as set forth in
Section 2.1(d) (the “Regulation S Global Note”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for DTC in the manner described in this
Article II. Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the “Restricted Period”), interests in the
Regulation S Global Note may only be transferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements
described herein.
Investors may hold their interests in the Regulation S Global Note through organizations other than Euroclear Bank
S.A./N.V. (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream”) that are participants in DTC’s system or directly through Euroclear or Clearstream, if they are
participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applicable Regulation S
Global Note on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S
Global Note in customers’ securities accounts in the depositaries’ names on the books of DTC.
The Regulation S Global Note
may be represented by more than one certificate if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to
time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
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The Rule 144A Global Note and the Regulation S Global Note are sometimes collectively herein
referred to as the “Global Notes.”
The principal of (and premium, if any) and interest on the Notes shall be payable
at the office or agency of the Paying Agent designated by the Issuer maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained
for such purpose pursuant to Section 2.3; provided, however, that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a
Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including principal,
premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States 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 15 days immediately preceding the relevant
due date for payment (or such other date as the Trustee or Paying Agent, as applicable, may accept in its discretion).
The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Section 2.1(d). The Issuer shall approve any notation, endorsement or legend on the
Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Issuer, the Guarantors and the Trustee, by their
execution and delivery of this Indenture, or a supplemental indenture to this Indenture, expressly agree to be bound by such terms.
(c)
Denominations. The Notes shall be issuable only in fully registered form in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof.
(d) Restrictive and Global Note Legends.
(1) Unless and until (i) an Initial Note or an Additional Note issued as a Restricted Note is sold under an effective
registration statement or (ii) the Issuer receives an Opinion of Counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the
Securities Act, the Rule 144A Global Note, the Regulation S Global Note, and shall each bear the following legend on the face thereof:
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
79
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”)), OR (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”), (2) AGREES NOT TO OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER SUCH NOTE PRIOR TO THE DATE THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR] [IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE DATE THE NOTES WERE ISSUED AND THE LAST DATE THAT THE ISSUER OR ANY OF ITS
AFFILIATES WERE THE OWNER OF THE NOTES OR ANY PREDECESSOR OF THE NOTES ONLY (A) TO THE ISSUER, (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 (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
(2) Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR THE AGENT OF THE ISSUER FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
80
ENTITY AS IS 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF.
(3) If issued with original issue discount (within the meaning of Section 1273 of the Code)
for U.S. federal income tax purposes, each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
THIS GLOBAL NOTE HAS BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED) FOR U.S. FEDERAL INCOME TAX PURPOSES. A BENEFICIAL OWNER THAT IS A UNITED STATES PERSON FOR FEDERAL INCOME TAX PURPOSES GENERALLY WILL BE REQUIRED TO INCLUDE SUCH ORIGINAL ISSUE DISCOUNT IN GROSS INCOME AS INTEREST AS IT ACCRUES ON
A CONSTANT YIELD TO MATURITY BASIS REGARDLESS OF SUCH PERSON’S REGULAR METHOD OF ACCOUNTING FOR U.S. FEDERAL INCOME TAX PURPOSES, AND IN ADVANCE OF THE RECEIPT OF CASH PAYMENTS ATTRIBUTABLE TO SUCH INCOME. UPON WRITTEN REQUEST, THE COMPANY
WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS GLOBAL NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3) THE YIELD TO MATURITY OF THE NOTE.
HOLDERS SHOULD CONTACT THE REPRESENTATIVE OF THE COMPANY AT ITS ADDRESS AS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(e) Book-Entry Provisions. (i) This Section 2.1(e) shall apply only to Global Notes deposited with the
Trustee, as custodian for DTC, and for which the applicable procedures of DTC shall govern.
(1) Each Global Note initially
shall (x) be registered in the name of DTC or the nominee of DTC, (y) be delivered to the Notes Custodian for DTC and (z) bear legends as set forth in Section 2.1(d)(2). Transfers of a Global Note (but not a
beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to DTC, its successors or its respective nominees, except as set forth in Section 2.1(e)(4) and 2.1(f). If a beneficial
interest in a Global Note is transferred or exchanged for a beneficial interest in another
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Global Note, the Notes Custodian will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or
exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or
exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2) Members of, or participants in, DTC (“Agent Members”) shall have no rights under this Indenture with
respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the custodian of DTC or under such Global Note, and DTC may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing, 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 DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(3) In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to
Section 2.1(f) to beneficial owners who are required to hold Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount
equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Notes of like tenor and amount.
(4) In connection with the transfer of an entire Global Note to beneficial owners pursuant to
Section 2.1(f), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner
identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(5) The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(6) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such
Global Note may be effected only through a book-entry system maintained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in
such Global Note shall be required to be reflected in a book entry.
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(f) Definitive Notes. Except as provided below, owners of beneficial interests in
Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary
is not appointed by the Issuer within 90 days of such notice, (B) the Issuer in its sole discretion executes and deliver to the Trustee and Registrar an Officer’s Certificate stating that such Global Note shall be so exchangeable or
(C) an Event of Default has occurred and is continuing and the Registrar has received a written request from DTC. In the event of the occurrence of any of the events specified in the second preceding sentence or in clause (A), (B) or
(C) of the preceding sentence, the Issuer shall promptly make available to the Registrar a reasonable supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of the Issuer
or evidencing a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which either the Issuer or any affiliate of the Issuer was an owner
of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d)(1). If required to do so pursuant to any applicable law or regulation, beneficial owners may also obtain Definitive Notes in
exchange for their beneficial interests in a Global Note upon written request in accordance with DTC’s and the Registrar’s procedures.
(1) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to
Section 2.1(e) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in Section 2.1(d)(1).
(2) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will
(x) cancel such Definitive Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the
entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal amount not so
transferred.
(3) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the Trustee will
cancel the Definitive Note being transferred or exchanged, (y) the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an aggregate
principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such transferee or
Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder thereof, one or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder thereof.
(4) Notwithstanding anything to the contrary in this Indenture, in no event shall a Definitive Note be delivered upon exchange
or transfer of a beneficial interest in the Regulation S Global Note prior to the end of the Restricted Period.
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Section 2.2 Execution and Authentication. One Officer of the Issuer shall sign
the Notes for the Issuer by manual, facsimile, electronic (including a digital signature provided by DocuSign) or PDF signature. If the Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note,
the Note shall be valid nevertheless.
A Note shall not be valid until an authorized officer of the Trustee manually authenticates the
Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for
delivery: (1) Initial Notes for original issue (x) on the Issue Date in an aggregate principal amount of $697,970,754 and (y) in connection with the Exchange Offers, on the Exchange Offer Final Settlement Date in an aggregate
principal amount of up to $3,900,270 and (2) subject to the terms of this Indenture, Additional Notes for original issue in an unlimited principal amount, in each case upon a written order of the Issuer signed by one Officer (the
“Issuer Order”). Such Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be
authenticated, the Holder of the Notes and whether the Notes are to be Initial Notes or Additional Notes. The Trustee may request and rely upon an Issuer Order prior to authenticating any Notes hereunder.
The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Issuer to authenticate the
Notes. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Issuer. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
In case any of the Issuer or any Guarantor, pursuant to Article IV or Section 10.2,
as applicable, shall be consolidated or merged with or into any other Person or shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Issuer or any Guarantor shall have been merged, or the Person which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance, transfer, lease or other disposition may (but shall not be required), from time to time,
at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate to reflect such successor Person, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery
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Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this
Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the
time outstanding for Notes authenticated and delivered in such new name.
Section 2.3 Registrar and Paying Agent. The Issuer
shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “Registrar”) and an office or agency where Notes may be presented for payment. The Registrar shall keep a register
of the Notes and of their transfer and exchange (the “Notes Register”). The Issuer may have one or more co-registrars and one or more additional paying agents. The term “Paying
Agent” includes any additional paying agent and the term “Registrar” includes any co-registrar.
The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee in writing of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The Issuer or any Guarantor may act as Paying Agent, Registrar or Transfer Agent.
The Issuer initially appoints DTC to act as Depositary with respect to the Global Notes. The Issuer initially appoints the Trustee as
Registrar and Paying Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no
such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to
the Trustee and the passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance
with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee.
Section 2.4 Paying Agent to Hold Money in Trust. By no later than 11:00 a.m. (New York City time) on the date on which any
principal of, premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium or interest when due. The Issuer shall require
each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on
the Notes (whether such assets have been distributed to it by the Issuer or other obligors on the Notes), shall notify the Trustee in writing of any default by the Issuer or any Guarantor in making any such payment and shall during the continuance
of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Notes together with a full accounting thereof. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at
any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the
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Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Issuer or a
Subsidiary of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5 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 Holders. If the Trustee is not the Registrar, the Issuer, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to the Trustee, in writing at least
five (5) 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 Holders.
Section 2.6 Transfer and Exchange.
(a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein)
for another Note or Notes of any authorized denomination by presenting to the Registrar a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other
document required by this Section 2.6. The Registrar will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes Register
maintained by the Registrar for the purpose, and no transfer or exchange will be effective until it is registered in such Notes Register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with
this Section 2.6 and Section 2.1(e) and 2.1(f), as applicable, and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and
Clearstream. The Registrar shall refuse to register any requested transfer or exchange that does not comply with this paragraph.
(b)
Transfers of Rule 144A Notes. The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note prior to the date that is one year after the later of the date of its original issue and the last
date on which the Issuer or any Affiliate of the Issuer was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”):
(1) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a
“qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that
Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC;
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(2) [reserved]; and
(3) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a
Non-U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.9 from the proposed transferee and the
delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer.
(c) Transfers of Regulation S
Notes. The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(1) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the
transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a
“qualified institutional buyer” within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
(2) [reserved]; and
(3) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Section 2.9 hereof from the proposed transferee and receipt by the Registrar or its agent of an Opinion
of Counsel, certification and/or other information satisfactory to the Issuer; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the
Regulation S Global Note to a transferee in the form of a beneficial interest in that Regulation S Global Note in accordance with this Indenture and the applicable procedures of DTC.
After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in accordance with applicable law without
requiring the certification set forth in Section 2.9 or any additional certification.
(d) Restricted Notes
Legend. Upon the transfer, exchange or replacement of Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a
Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (1) an Initial Note is being transferred pursuant to an effective registration statement, (2) Initial Notes are being exchanged for
Notes that do not bear the Restricted Notes Legend in accordance
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with Section 2.6(e) or (3) there is delivered to the Registrar and the Issuer an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither
such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes
Legend.
(e) [Reserved].
(f) Retention of Written Communications. The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.1 or this Section 2.6. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications, at the Issuer’s
expense, at any reasonable time upon the giving of reasonable prior written notice to the Registrar.
(g) Obligations with Respect to
Transfers and Exchanges of Notes. To permit registrations of transfers and exchanges, the Issuer shall, subject to the other terms and conditions of this Article II, execute and the Trustee shall authenticate Definitive Notes and Global
Notes at the Issuer’s and the Registrar’s written request.
No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Issuer may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to Sections 2.2, 2.6, 2.11, 2.13, 3.5, 5.6 or 9.5).
The Issuer (and the Registrar) shall not be required to register the transfer of or exchange of any Note (A) for a period beginning
(1) fifteen (15) calendar days before the mailing (or electronic delivery) of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing (or electronic delivery) or (2) fifteen (15)
calendar days before an interest payment date and ending on such interest payment date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem
and treat the person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the forms of Notes attached hereto as Exhibit A) interest
on such Note and for all other purposes whatsoever, including without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by
notice to the contrary.
Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to
Section 2.1(f) shall, except as otherwise provided by Section 2.6(d), bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in
Section 2.1(d)(1).
All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same
debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
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(h) No Obligation of the Trustee. The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership
interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Notes
(or other security or property) 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 in respect of the Notes shall be given or made only to or upon the order of the
registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may rely
and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
Neither the Registrar nor the Trustee shall have any 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 Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof. Neither the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by DTC.
Section 2.7 [Reserved].
Section 2.8 [Reserved].
Section 2.9 Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S.
Accendra Health, Inc.
4435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Email: investor.relations@accendra.com
Regions Bank, as
Trustee
1180 West Peachtree Street, Suite 1200
Atlanta, GA
30309
Attention: Kristine Prall, VP, CCTS
Email:
Kristine.prall@regions.com
Re: Accendra Health, Inc. (the “Issuer”)
9.750% Senior Secured Second Lien Notes due 2033 (the “Notes”)
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Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S (“Regulation S”) under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2)
of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule
904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
We also hereby certify that we [are][are not] an Affiliate of the Issuer and, to our knowledge, the transferee of the Notes [is][is not] an
Affiliate of the Issuer.
The Trustee and the Issuer are entitled to conclusively rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate and not otherwise defined herein have the meanings
set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
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Section 2.10 [Reserved].
Section 2.11 Mutilated, Destroyed, Lost or Stolen Notes. If a mutilated Note is surrendered to the Registrar or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and upon receipt of a Issuer Order, the Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the UCC are met, such that the Holder (a) satisfies the Issuer and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Issuer and the Trustee prior to the Note being acquired by a protected
purchaser as defined in Section 8-303 of the UCC (a “protected purchaser”), (c) satisfies any other reasonable requirements of the Trustee and (d) provides an indemnity bond, as
more fully described below; provided, however, if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the
Trustee and/or the Issuer shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of the (i) Trustee to protect
the Trustee and (ii) the Issuer to protect the Issuer, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Issuer, any Guarantor or the Trustee
that such Note has been acquired by a protected purchaser, the Issuer shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such
destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In
case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.11, the Issuer may require that such Holder pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel and of the Trustee) in connection therewith.
Subject to the proviso in the initial paragraph of this Section 2.11, every new Note issued pursuant to this
Section 2.11, in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, any Guarantor (if applicable) and any other obligor upon the Notes,
whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.11 are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.12 Outstanding
Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those paid pursuant to Section 2.11 and those described in this
Section 2.12 as not outstanding. A Note does not cease to be outstanding in the event the Issuer or an Affiliate of the Issuer holds the Note; provided, however, that (i) for purposes of determining which
are outstanding for consent or voting purposes hereunder, the provisions of Section 13.4 shall apply and (ii) in determining
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whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum
purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the
Trustee actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered outstanding.
If a Note is replaced
pursuant to Section 2.11 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a
protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section 2.11.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date, money sufficient
to pay all principal, premium, if any, and accrued interest payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
Section 2.13 Temporary Notes. In the event that Definitive Notes are to be issued under the terms of this Indenture, until such
Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive 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. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Issuer for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged, the
Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.
Section 2.14 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 Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and
dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Issuer or any Guarantor acquires any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.14. The Issuer may not
issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
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At such time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment
shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
Section 2.15 Payment of Interest; Defaulted Interest. Interest on any Note which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the
Issuer maintained for such purpose pursuant to Section 2.3.
Any interest on any Note which is payable, but is
not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election, as provided in clause (a) or
(b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 days after such notice) of the proposed payment (the “Special Interest Payment Date”), 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 in this Section 2.15(a). Thereupon the Issuer shall fix a record date (the “Special
Record Date”) for the payment of such Defaulted Interest, which date shall be not more than twenty (20) calendar days and not less than fifteen (15) calendar days prior to the Special Interest Payment Date and not less than ten
(10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Issuer, the Trustee shall
cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.1, not less than ten
(10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid
on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions in
Section 2.15(b).
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(b) The Issuer may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment pursuant to
this Section 2.15(b), such manner of payment shall be deemed practicable by the Trustee.
Subject to the
foregoing provisions of this Section 2.15, 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 2.16 CUSIP and ISIN Numbers. The Issuer in issuing the Notes
may use “CUSIP” and “ISIN” numbers and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption or purchase as a convenience to Holders; provided, however, the
Trustee shall have no liability for any defect in the CUSIP number as they appear on any Notes, notice or elsewhere and 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 a redemption or purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or purchase shall not be affected by any defect in or omission of
such CUSIP and ISIN numbers. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE
III
COVENANTS
Section 3.1 Payment of Notes. The Issuer shall promptly pay the principal of, premium, if any, and interest on the Notes on the
dates and in the manner provided in the Notes and in this Indenture. Principal, premium, if any, and interest shall be considered paid on the date due if by 11:00 a.m. New York City time on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all principal, premium, if any, and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to
the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate specified therefor in the Notes, and it shall
pay interest on overdue installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary
contained in this Indenture, the Issuer may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder.
Section 3.2 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (including Acquired
Indebtedness); provided, however, that the Company and any of its Restricted Subsidiaries may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving pro forma effect thereto (including
pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries is no less than 2.00 to 1.00.
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(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness
(collectively, “Permitted Debt”):
(1) (X) Indebtedness Incurred under any Credit Facility by the
Company or any of its Restricted Subsidiaries (including letters of credit or bankers’ acceptances issued or created under any Credit Facility) and Guarantees in respect of such Indebtedness, up to an aggregate principal amount equal to
$511 million, (Y) Indebtedness Incurred under the Revolving Credit Agreement (including letters of credit or bankers’ acceptances issued or created thereunder) by the Company or any of its Restricted Subsidiaries and Guarantees in
respect of such Indebtedness, up to an aggregate principal amount equal to $250 million; provided that in connection with or after the consummation of a Permitted Acquisition, the Company and its Restricted Subsidiaries may Incur up to
an additional $50 million in Indebtedness under the Revolving Credit Agreement (including letters of credit or bankers’ acceptances issued or created thereunder) if either (x) on the date of such Permitted Acquisition or (y) on
the date of such Incurrence and, in either case, after giving pro forma effect thereto (including pro forma application of the proceeds of any such Incurrence), (A) the Consolidated First Lien Secured Leverage Ratio for the Company and its
Restricted Subsidiaries is no higher than 3.25 to 1.00 and (B) the Consolidated Total Leverage Ratio of the Company and its Restricted Subsidiaries would not be higher than immediately prior to such Permitted Acquisition, and (Z) in the
case of any refinancing of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other
costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing, and any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or other obligations of the Company or any
Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the terms of this Indenture; provided that the Indebtedness incurred pursuant to this clause (2) may not be Incurred in
connection with any Liability Management Transaction;
(3) Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that if a Guarantor incurs such Indebtedness owing to a Non-Guarantor
Subsidiary, excluding any Indebtedness in respect of accounts payable incurred in connection with goods and services rendered in the ordinary course of business or consistent with past practice (and not in connection with the borrowing of money),
such Indebtedness is expressly subordinated in right of payment (but only to the extent permitted by applicable law and to the extent such subordination does not result in material adverse tax consequences) to the Guarantee of the Notes of such
Guarantor; provided, further, that any subsequent issuance or transfer (other than the incurrence of a Permitted Lien) of any Capital Stock or any other event that results in any such Restricted Subsidiary to which such Indebtedness is owed ceasing
to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien (but not foreclosure thereon)) shall be
deemed, in each case, to be an incurrence of such Indebtedness not permitted by this clause (3); provided that the Indebtedness incurred pursuant to this clause (3) may not be Incurred in connection with any Liability Management
Transaction;
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(4) Indebtedness represented by (a) the Notes (other than any
Additional Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (2), (3), (4)(a), 4(e) and (15) of this Section 3.2(b) but including the Existing
Notes) outstanding on the Issue Date and any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4), clause
(5) or clause (11) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), (d) Management Advances and (e) the First Lien Notes (other than any Additional Notes (as defined in
the First Lien Notes Indenture)), including any Guarantee thereof;
(5) so long as no Event of Default has occurred and is
continuing, Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to finance a Permitted Acquisition or similar Investment or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged
into, amalgamated or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of the Indenture (including designating an Unrestricted Subsidiary as a Restricted Subsidiary); provided that after giving pro forma
effect to such acquisition, merger, amalgamation or consolidation, either:
(i) the Company would be permitted to Incur at
least $1.00 of additional Indebtedness pursuant to Section 3.2(a), or (ii) the Consolidated Total Leverage Ratio would have been no greater than 4:00 to 1:00;
(ii) either the Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries would not be lower or the
Consolidated Total Leverage Ratio of the Company and the Restricted Subsidiaries would not be higher, in each case, than immediately prior to such acquisition, merger, amalgamation or consolidation; or
(iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction
or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be
those Persons who were obligors of such Indebtedness prior to such acquisition, merger, amalgamation or consolidation;
(6)
Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness
(i) represented by Finance Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then
outstanding, does not exceed the amount of Finance Lease Obligations and
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Purchase Money Obligations outstanding on the Issue Date plus the greater of (a) $35 million and (b) 10.0% of LTM EBITDA, and any Refinancing Indebtedness in respect thereof and
(ii) arising out of Sale and Leaseback Transactions in an aggregate outstanding principal amount, which when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause (7)(ii) and then outstanding, does
not exceed the greater of (a) $35 million and (b) 10.0% of LTM EBITDA at the time of incurrence and any Refinancing Indebtedness in respect thereof; provided that the Indebtedness incurred pursuant to this clause (7)(ii) may not be
Incurred in connection with any Liability Management Transaction;
(8) Indebtedness in respect of (a) workers’
compensation claims, health, disability or other employee benefits, property, casualty or liability insurance, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, bid, appeal, advance payment (including
progress premiums), customs, value added or other Tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to liabilities,
obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) 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; provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received
in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bank guarantees, bankers’
acceptances, discounted bills of exchange, discounting or factoring of receivables or payables for credit management purposes, warehouse receipts, guarantees or other similar instruments or obligations issued or entered into, or relating to
liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; (e) Cash Management Obligations; and (f) Settlement Indebtedness;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, obligations in respect of earn-outs,
deferred purchase price or other adjustments of purchase price or, in each case, similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a
Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability
of the Company and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash
proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(10) unsecured Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount
of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Company from the issuance or sale (other than to a Restricted
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Subsidiary) of its Capital Stock or otherwise contributed to the equity (in each case, other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded
Contribution) of the Company, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the
amount available for making Restricted Payments to the extent the Company and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes
of Incurring Indebtedness pursuant to this clause to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(11) Indebtedness in the form of Additional Notes, including the Guarantees thereof;
(12) (a) Indebtedness issued by the Company or any of its Subsidiaries to any future, present or former employee, director,
officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity, in each case to finance the purchase or redemption
of Capital Stock of the Company or any Parent Entity that is not prohibited by Section 3.3 and (b) Indebtedness consisting of obligations under deferred compensation or any other similar arrangements incurred in the
ordinary course of business, consistent with past practice, any Investment or any acquisition (by merger, consolidation, amalgamation or otherwise);
(13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of (i) the financing of insurance
premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past
practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal
amount of all other Indebtedness Incurred pursuant to this clause (14) and then outstanding, will not exceed the greater of (a) $170 million and (b) 50.0% of LTM EBITDA, and any Refinancing Indebtedness in respect thereof; provided
that any Indebtedness Incurred pursuant to this clause (14) may only be secured by Liens on the Collateral that have Pari Passu Lien Priority or Junior Lien Priority relative to the Notes and the Note Guarantees or be unsecured;
(15) Indebtedness in respect of any Qualified Securitization Financing or any Receivables Facility in an aggregate principal
amount not to exceed $200 million at any one time outstanding; provided that following the consummation of a Permitted Acquisition, the Company and its Restricted Subsidiaries may incur up to an additional $50 million pursuant to
this clause (15) with respect to any Securitization Assets or Receivables Assets acquired in such Permitted Acquisition;
(16) Indebtedness of the Company or any of its Restricted Subsidiaries arising pursuant to any Permitted Tax Restructuring, and
Permitted Intercompany Activities;
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(17) [reserved];
(18) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a
Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such
credit;
(19) Indebtedness to a customer to finance the acquisition of any equipment necessary to perform services for such
customer; provided that the terms of such Indebtedness are consistent with those entered into with respect to similar Indebtedness prior to the Issue Date, including that (i) the repayment of such Indebtedness is conditional upon such
customer ordering a specific volume of goods or services and (ii) such Indebtedness does not bear interest or provide for scheduled amortization or maturity;
(20) obligations in respect of Disqualified Stock in an amount not to exceed the greater of $35 million and 10.0% of LTM
EBITDA outstanding at any time;
(21) [reserved]; and
(22) Indebtedness incurred by the Company or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are
promptly deposited with the Trustee to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and
in compliance with, this Section 3.2:
(1) subject to clause (3) below, in the event that
all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.2(a) and (b), the Company, in its sole discretion, will classify, and may from time to
time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in Section 3.2(a) or one of the clauses of Section 3.2(b);
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to
any type of Indebtedness described in Section 3.2(a) or (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the time of
reclassification (it being understood that any Indebtedness incurred pursuant to one of the clauses of Section 3.2(b) shall cease to be deemed incurred or outstanding for purposes of such clause but shall be deemed incurred
for the purposes of the Section 3.2(a) from and after the first date on which the Company or its Restricted Subsidiaries could have incurred such Indebtedness under Section 3.2(a) without reliance
on such clause);
(3) all Indebtedness outstanding on the Issue Date under the Credit Agreements shall be deemed to have
been Incurred on the Issue Date under Section 3.2(b)(1) and shall not be permitted to be reclassified, and all Indebtedness outstanding on the Issue Date with respect to the Notes or the First Lien Notes shall be deemed to
have been Incurred on the Issue Date under Section 3.2(b)(4) and shall not be permitted to be reclassified;
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(4) in the case of any Refinancing Indebtedness, when measuring the
outstanding amount of such Indebtedness, such amount shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, dividends, premiums (including, without limitation, tender premiums), defeasance costs, fees
and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(5) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments
relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(6) 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 Section 3.2(a) or any clause of Section 3.2(b) and the letters of credit, bankers’ acceptances or other similar
instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(7) the principal amount of
any Disqualified Stock of the Company 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;
(8) Indebtedness permitted by this
Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this
Section 3.2 permitting such Indebtedness;
(9) for all purposes under this Indenture, including
for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, in connection with the incurrence, issuance or assumption of any Indebtedness
pursuant to Section 3.2(a) or Section 3.2(b) or the incurrence or creation of any Lien pursuant to the definition of “Permitted Liens” or otherwise, the Company 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, the
Consolidated First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, as applicable, is complied with (or 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
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permitted under this Section 3.2 or the definition of “Permitted Liens,” as applicable, whether or not the Fixed Charge Coverage Ratio, the Consolidated
First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, 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 complied with (or satisfied) for all purposes (including as to the absence of any continuing Default or Event of Default); provided that for purposes of subsequent calculations of the Fixed Charge
Coverage Ratio, the Consolidated First Lien Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Indenture, 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 Company revokes an election of a Reserved Indebtedness Amount;
(10) notwithstanding anything in this Section 3.2 to the contrary, in the case of any Indebtedness
incurred to refinance Indebtedness initially incurred in reliance on Section 3.2(b) measured by reference to a percentage of LTM EBITDA at the time of Incurrence, if such refinancing would cause the percentage of LTM EBITDA
restriction to be exceeded if calculated based on the percentage of LTM EBITDA on the date of such refinancing, such percentage of LTM EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus accrued and unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including
original issue discount, upfront fees or similar fees) in connection with such refinancing; and
(11) the amount of
Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP.
Notwithstanding anything to the contrary in this Indenture or the other Note Documents, (a) the aggregate principal amount of all First
Lien Obligations Incurred under Section 3.2(b)(1)(X), Section 3.2(b)(1)(Y) or Section 3.2(b)(4)(e) shall not, at any one time outstanding, exceed $1,351 million plus,
with respect to any Refinancing Indebtedness in respect thereof, any increase permitted under clause (3) of the definition thereof, (b) the aggregate principal amount of all First Lien Obligations and Second Lien Obligations
Incurred under Section 3.2(b)(1)(X), Section 3.2(b)(1)(Y), Section 3.2(b)(4)(a), Section 3.2(b)(4)(e) or
Section 3.2(b)(11) shall not, at any one time outstanding, exceed $2,053 million plus, with respect to any Refinancing Indebtedness, any increase permitted under clause (3) of the definition thereof, and
(c) the aggregate principal amount of all Indebtedness for borrowed money Incurred by Non-Guarantor Subsidiaries under Section 3.2(a),
Section 3.2(b)(1), Section 3.2(b)(5)(i), Section 3.2(b)(5)(ii), Section 3.2(b)(14) and Section 3.2(b)(20) shall not, at
any one time outstanding, exceed the greater of (x) $35 million and (y) 10.0% of LTM EBITDA, plus with respect to any Refinancing Indebtedness in respect thereof, any increase permitted under clause (3) of the definition thereof;
provided that the Indebtedness described in this clause (c) may not be Incurred in connection with any Liability Management Transaction.
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Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or
amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or
obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.
If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred
by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Company shall be in default of this
Section 3.2).
For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the
case of term debt, or first committed, in the case of revolving credit debt; provided, that if such Indebtedness is Incurred to refinance other Indebtedness 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 of such refinancing Indebtedness does not exceed (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of accrued and unpaid interest, dividends, premiums (including tender premiums) defeasance
costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing.
Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to
refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that
is in effect on the date of such Refinancing.
For purposes of this Indenture, (1) unsecured Indebtedness shall not be treated as
subordinated or junior to Secured Indebtedness merely because it is unsecured and (2) senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to
the same collateral or is secured by different collateral or because it is guaranteed by different obligors.
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Section 3.3 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries, directly or indirectly, to:
(1) declare or pay any dividend or make any distribution on or in respect of the Company’s or any Restricted
Subsidiary’s Capital Stock (including, without limitation, any such payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except:
(i) dividends, payments or distributions payable in Capital Stock of the Company (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock of the Company; or
(ii) dividends, payments or distributions
payable to the Company or a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to holders of its Capital Stock other than the Company or another Restricted Subsidiary on no more than a
pro rata basis);
(2) purchase, repurchase, redeem, retire or otherwise acquire or retire for value any Capital
Stock of the Company or any Parent Entity held by Persons other than the Company or a Restricted Subsidiary;
(3) purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (other than (i) any such purchase, repurchase, redemption,
defeasance or other acquisition or retirement in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of purchase, repurchase, redemption, defeasance or other
acquisition or retirement and (ii) any Indebtedness Incurred pursuant to Section 3.2(b)(3)); or
(4) make any Restricted Investment;
(any such dividend, distribution, payment, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Restricted Investment referred to in
clauses (1) through (4) are referred to herein as a “Restricted Payment”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment:
(i) an Event of Default shall have occurred and be continuing (or would immediately thereafter result therefrom);
(ii) other than in the case of (i) a Restricted Investment and (ii) amounts attributable to subclauses
(C) through (F) of clause (iii) below, the Company is not able to incur an additional $1.00 of Indebtedness pursuant to Section 3.2(a) immediately after giving effect, on a pro forma basis, to such Restricted
Payment; or
(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the
Issue Date (and not returned or rescinded) (including Permitted Payments made pursuant to Section 3.3(b)(1) (without duplication) and Section 3.3(b)(10), but excluding all other Restricted Payments made pursuant to
Section 3.3(b)) would exceed the sum (the “Available Amount”) of (without duplication):
(A) [reserved];
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(B) 50% of Consolidated Net Income for the period (treated as one
accounting period) from the first day of the fiscal quarter in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company
are available (which may, at the Company’s election, be internal financial statements) (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit);
(C) 100% of the aggregate cash, and the fair market value of property or assets or marketable securities, received by the
Company from the issue or sale of its Capital Stock or as the result of a merger or consolidation with another Person subsequent to the Issue Date or otherwise contributed to the equity (other than through the issuance of Disqualified Stock or
Designated Preferred Stock) of the Company subsequent to the Issue Date (other than (x) Net Cash Proceeds or property or assets or marketable securities received from an issuance or sale of such Capital Stock to a Restricted Subsidiary or an
employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the benefit of its employees to the extent funded by the Company or any Restricted Subsidiary, (y) cash or property or assets or marketable
securities to the extent that any Restricted Payment has been made from such proceeds in reliance on Section 3.3(b)(6) and (z) Excluded Contributions);
(D) 100% of the aggregate cash, and the fair market value of property or assets or marketable securities, received by the
Company or any Restricted Subsidiary from the issuance or sale (other than to the Company or a Restricted Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any Subsidiary of the Company for the
benefit of their employees to the extent funded by the Company or any Restricted Subsidiary) by the Company or any Restricted Subsidiary subsequent to the Issue Date of any Indebtedness, Disqualified Stock or Designated Preferred Stock that has been
converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock or Designated Preferred Stock) plus, without duplication, the amount of any cash, and the fair market value of property or assets or marketable securities,
received by the Company or any Restricted Subsidiary upon such conversion or exchange;
(E) 100% of the aggregate amount
received in cash and the fair market value, as determined in good faith by the Company, of marketable securities or other property received by means of: (i) the sale or other disposition (other than to the Company or a Restricted Subsidiary)
of, or other returns on Investment from, Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of, or cash distributions or cash interest received in respect of, such
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Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments by the Company or
its Restricted Subsidiaries, in each case after the Issue Date; or (ii) the sale (other than to the Company or a Restricted Subsidiary) of the stock of an Unrestricted Subsidiary or a dividend, payment or distribution from an Unrestricted
Subsidiary (other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(16) and will increase the amount available under the applicable clause of the definition of
“Permitted Investment” or Section 3.3(b)(16) as the case may be) or a dividend from an Unrestricted Subsidiary after the Issue Date; and
(F) 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 Company or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary after the Issue Date, the fair
market value of the Investment in such Unrestricted Subsidiary (or the assets transferred), as determined in good faith by the Company at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such
merger, amalgamation or consolidation or transfer of assets (after taking into consideration any Indebtedness associated with the Unrestricted Subsidiary so designated or merged, amalgamated or consolidated or Indebtedness associated with the assets
so transferred), other than to the extent of the amount of the Investment that constituted a Permitted Investment or was made under Section 3.3(b)(16) and will increase the amount available under the applicable clause of the definition of
“Permitted Investment” or Section 3.3(b)(16), as the case may be.
(b) Section 3.3(a) will not prohibit any of the
following (collectively, “Permitted Payments”):
(1) the payment of any dividend or distribution within
60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Indenture or the redemption, repurchase or retirement of Indebtedness if, at the date of any redemption notice,
such payment would have complied with the provisions of this Indenture as if it were and is deemed at such time to be a Restricted Payment at the time of such notice;
(2) (a) any prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of Capital
Stock, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”) or Subordinated Indebtedness made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in
connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company or any Parent Entity to the extent contributed to the Company (in each
case,
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other than Disqualified Stock or Designated Preferred 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 Company or to an employee stock ownership plan or any trust established by the Company 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 Section 3.3(b)(13), 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 Capital Stock of a Parent Entity) 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;
(3) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement of
Subordinated Indebtedness made by exchange for, or out of the proceeds of the substantially concurrent sale of, Indebtedness permitted to be Incurred pursuant to Section 3.2;
(4) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement of
Preferred Stock of, the Company or a Restricted Subsidiary made by exchange for, or out of the proceeds of, the substantially concurrent sale of Preferred Stock of the Company or a Restricted Subsidiary, as the case may be, that, in each case, is
permitted to be Incurred pursuant to Section 3.2;
(5) any prepayment, purchase, repurchase,
exchange, redemption, defeasance, discharge or other acquisition or retirement of Subordinated Indebtedness or Disqualified Stock or Preferred Stock of a Restricted Subsidiary:
(i) from Net Available Cash, but only if the Company shall have first complied with Section 3.5 and
purchased all Notes tendered pursuant to any offer to repurchase all the Notes required thereby, prior to prepaying, purchasing, repurchasing, redeeming, defeasing, discharging or otherwise acquiring or retiring such Subordinated Indebtedness,
Disqualified Stock or Preferred Stock; or
(ii) to the extent required by the agreement governing such Subordinated
Indebtedness, Disqualified Stock or Preferred Stock, following the occurrence of (i) a Change of Control (or other similar event described therein as a “change of control”) or (ii) an Asset Disposition (or other similar event
described therein as an “asset disposition” or “asset sale”), but only if the Company shall have first complied with Section 3.5 or Section 3.9, as applicable, and purchased
all Notes tendered pursuant to the offer to repurchase all the Notes required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Subordinated Indebtedness, Disqualified Stock or Preferred Stock;
or
(iii) consisting of Acquired Indebtedness (other than Indebtedness Incurred (A) to provide all or any portion of
the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary or (B) otherwise in connection
with or contemplation of such acquisition);
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(6) a Restricted Payment to pay for the prepayment, purchase, repurchase,
redemption, defeasance, discharge, retirement or other acquisition of Capital Stock of the Company or any Parent Entity held by any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their
respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity pursuant to any management equity plan, stock option plan, phantom equity plan or any other management, employee
benefit, or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement (including, for the avoidance of doubt, any
principal and interest payable on any Indebtedness issued by the Company or any Parent Entity in connection with such prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition), including any Capital Stock
rolled over, accelerated or paid out by or to any employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or
any Parent Entity in connection with any transaction; provided, however, that the aggregate Restricted Payments made under this clause do not exceed $10 million in any calendar year; provided, further, that such amount in
any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Capital Stock (other
than Disqualified Stock or Designated Preferred Stock) of the Company and, to the extent contributed to the capital of the Company (other than through the issuance of Disqualified Stock or Designated Preferred Stock or an Excluded Contribution),
Capital Stock of any Parent Entity, in each case to members of management, directors or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company, any of its Subsidiaries or any Parent Entity that
occurred after the Issue Date, to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of Section 3.3(a)(iii); plus
(ii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries (or any
Parent Entity to the extent contributed to the Company) after the Issue Date; less
(iii) the amount of any
Restricted Payments made in previous calendar years pursuant to clauses (i) and (ii) of this clause (6);
and provided,
further, that (i) cancellation of Indebtedness owing to the Company or any Restricted Subsidiary from any future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled
Investment Affiliates or Immediate Family Members) of the Company or Restricted Subsidiaries or any Parent Entity in connection with a repurchase of Capital Stock of the Company or any
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Parent Entity and (ii) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or similar instruments if such Capital Stock represents all or a portion of the
exercise price thereof and payments, in lieu of the issuance of fractional shares of such Capital Stock 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 3.3 or any other provision of this Indenture;
(7) the declaration and payment of dividends on Disqualified Stock or Preferred Stock of a Restricted Subsidiary, Incurred in
accordance with Section 3.2;
(8) payments made or expected to be made by the Company or any
Restricted Subsidiary in respect of withholding or similar Taxes payable in connection with the exercise or vesting of Capital Stock or any other equity award by any future, present or former employee, director, officer, manager, contractor,
consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Company or any Restricted Subsidiary or any Parent Entity and purchases, repurchases, redemptions, defeasances or other acquisitions or
retirements of Capital Stock deemed to occur upon the exercise, conversion or exchange of stock options, warrants, equity-based awards or other rights in respect thereof if such Capital Stock represents a portion of the exercise price thereof or
payments in respect of withholding or similar Taxes payable upon exercise or vesting thereof;
(9) dividends, loans,
advances or distributions to any Parent Entity or other payments by the Company or any Restricted Subsidiary in amounts equal to (without duplication):
(i) the amounts required for any Parent Entity to pay any Parent Entity Expenses or to pay or distribute any Related Taxes;
(ii) amounts constituting or to be used for purposes of making payments to the extent specified in Sections
3.8.(b)(2), (3) and (5); and
(iii) so long as no Event of Default has occurred and is continuing (or
would result therefrom), up to the greater of $10 million and 2.0% of LTM EBITDA per calendar year;
(10) (a) the
declaration and payment of dividends on the common stock or common equity interests of the Company or any Parent Entity (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity
interests to the extent required by the terms of any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock), in an amount in any
fiscal year not to exceed 6% of Market Capitalization; or (b) in lieu of all or a portion of the dividends permitted by clause (a), any prepayment, purchase, repurchase, redemption, defeasance, discharge, retirement or other acquisition of the
Company’s Capital Stock (and any equivalent declaration and payment of a distribution of any security exchangeable for such common stock or common equity interests to the extent required by
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the terms of any such exchangeable securities and any Restricted Payment to any such Parent Entity to fund the payment by such Parent Entity of dividends on such entity’s Capital Stock) for
aggregate consideration that, when taken together with dividends permitted by clause (a), does not exceed the amount contemplated by clause (a);
(11) payments by the Company, or loans, advances, dividends or distributions to any Parent Entity to make payments, to holders
of Capital Stock of the Company or any Parent Entity in lieu of the issuance of fractional shares of such Capital Stock; provided, however, that any such payment, loan, advance, dividend or distribution shall not be for the purpose of
evading any limitation of this Section 3.3 or otherwise to facilitate any dividend or other return of capital to the holders of such Capital Stock (as determined in good faith by the Company);
(12) Restricted Payments that are made in an amount not to exceed the amount of Excluded Contributions;
(13) (i) the declaration and payment of dividends on Designated Preferred Stock of the Company or any of its Restricted
Subsidiaries issued after the Issue Date; (ii) the declaration and payment of dividends to a Parent Entity in an amount sufficient to allow the Parent Entity to pay dividends to holders of its Designated Preferred Stock issued after the Issue
Date; and (iii) the declaration and payment of dividends on Refunding Capital Stock that is Preferred Stock; provided, however, that, in the case of clauses (i) and(ii), the amount of all dividends declared or paid to a
Person pursuant to such clauses shall not exceed the Net Cash Proceeds received by the Company or the aggregate amount contributed in cash to the equity of the Company (other than through the issuance of Disqualified Stock or an Excluded
Contribution of the Company), from the issuance or sale of such Designated Preferred Stock; provided further, in the case of clauses (i), (ii) and (iii), that for the most recently ended four fiscal quarters for which consolidated financial
statements are available (which may, at the Company’s election, be internal financial statements) immediately preceding the date of issuance of such Designated Preferred Stock or declaration of such dividends on such Refunding Capital Stock,
after giving effect to such payment on a pro forma basis the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the test set forth in Section 3.2(a);
(14) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge, retirement or other acquisition of
Existing Notes made (i) for cash (other than with the proceeds of an Equity Offering) at a purchase price not to exceed, (x) with respect to the 2029 Notes, 75.0% of the principal amount thereof or (y) with respect to the 2030 Notes,
77.0% of the principal amount thereof, in each case plus accrued and unpaid interest, (ii) in exchange for Indebtedness Incurred pursuant to Section 3.2(b)(11) at a purchase price not to exceed, (x) with respect
to the 2029 Notes, 83.5% of the principal amount thereof or (y) with respect to the 2030 Notes, 84.5% of the principal amount thereof, in each case plus accrued and unpaid interest (provided that, for the avoidance of doubt, any such
accrued and unpaid interest may be paid in cash), or (iii) with the proceeds of an Equity Offering, for cash at a purchase price not to exceed the principal amount thereof, plus accrued and unpaid interest;
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(15) distributions or payments of Securitization Fees, sales contributions
and other transfers of Securitization Assets or Receivables Assets and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation, in each case in connection with a Qualified Securitization Financing
or Receivables Facility;
(16) so long as no Event of Default has occurred and is continuing (or would result therefrom),
(i) Restricted Payments (including loans or advances) in an aggregate amount outstanding at the time made not to exceed the greater of $35 million and 10.0% of LTM EBITDA at such time, and (ii) any Restricted Payments, so long as,
immediately after giving pro forma effect to the payment of any such Restricted Payment and the Incurrence of any Indebtedness the net proceeds of which are used to make such Restricted Payment, the Consolidated Total Leverage Ratio shall be no
greater than 2.50 to 1.00;
(17) mandatory redemptions of Disqualified Stock issued as a Restricted Payment or as
consideration for a Permitted Investment;
(18) any Restricted Payment made in connection with the Transactions and any
fees, costs and expenses (including all legal, accounting and other professional fees, costs and expenses) related thereto, including Transaction Expenses;
(19) [reserved];
(20) payments or distributions to dissenting stockholders pursuant to applicable law (including in connection with, or as a
result of, exercise of dissenters’ or appraisal rights and the settlement of any claims or action (whether actual, contingent or potential)), pursuant to or in connection with a merger, amalgamation, consolidation or transfer of assets that
complies with Section 4.1 hereof;
(21) Restricted Payments to a Parent Entity to finance
Investments that would otherwise be permitted to be made pursuant to this Section 3.3 if made by the Company; provided that (a) such Restricted Payment shall be made substantially concurrently with the closing
of such Investment, (b) such Parent Entity shall, promptly following the closing thereof, cause (1) all property acquired (whether assets or Capital Stock) to be contributed to the capital of the Company or one of its Restricted
Subsidiaries or (2) the merger or amalgamation of the Person formed or acquired into the Company or one of its Restricted Subsidiaries (to the extent not prohibited by Section 4.1) to consummate such Investment,
(c) such Parent Entity and its Affiliates (other than the Company or a Restricted Subsidiary) receives no consideration or other payment in connection with such transaction except to the extent the Company or a Restricted Subsidiary could have
given such consideration or made such payment in compliance with this Indenture, (d) any property received by the Company shall not increase amounts available for Restricted Payments pursuant to Section 3.3(a)(iii),
except to the extent the fair market value at the time of such receipt of such property exceeds the Restricted Payments made pursuant to this clause and (e) such Investment shall be deemed to be made by the Company or such Restricted Subsidiary
pursuant to another provision of this Section 3.3 (other than pursuant to Section 3.3(b)(12) hereof) or pursuant to the definition of “Permitted Investment” (other than pursuant to
clause (12) thereof);
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(22) Investments or other Restricted Payments in an aggregate amount not to
exceed an amount equal to Declined Excess Proceeds; and
(23) any Restricted Payment made in connection with a Permitted
Intercompany Activity or Permitted Tax Restructuring.
For purposes of determining compliance with this
Section 3.3, in the event that a Restricted Payment or Investment (or portion thereof) meets the criteria of more than one of the categories of Permitted Payments described in the clauses above, or is permitted pursuant to
Section 3.3(a) and/or one or more of the clauses contained in the definition of “Permitted Investment”, the Company will be entitled to divide or classify such Restricted Payment or Investment (or portion
thereof) on the date of its payment or later divide, classify or reclassify in whole or in part in its sole discretion (based on circumstances existing on the date of such division, classification or reclassification) such Restricted Payment or
Investment (or portion thereof) in any manner that complies with this Section 3.3, including as an Investment pursuant to one or more of the clauses contained in the definition of “Permitted Investment.”
Notwithstanding anything to the contrary in this Indenture or the other Note Documents, the aggregate principal amount of all Restricted
Payments made by Note Parties to Non-Guarantor Subsidiaries and Investments by Note Parties in Non-Guarantor Subsidiaries under
Section 3.3(b)(16)(i) and clause (22) in the definition of “Permitted Investment” shall not at any time exceed the greater of (x) $35 million and (y) 10.0% of LTM EBITDA.
The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s)
or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount, and the
fair market value of any non-cash Restricted Payment, property or assets other than cash shall be determined conclusively by the Company acting in good faith.
In connection with any commitment, definitive agreement or similar event relating to an Investment, the Company or applicable Restricted
Subsidiary may designate such Investment as having occurred on the date of the commitment, definitive agreement or similar event relating thereto (such date, the “Election Date”) if, after giving pro forma effect to such
Investment and all related transactions in connection therewith and any related pro forma adjustments, the Company or any of its Restricted Subsidiaries would have been permitted to make such Investment on the relevant Election Date in compliance
with this Indenture, and any related subsequent actual making of such Investment will be deemed for all purposes under this Indenture to have been made on such Election Date, including for purposes of calculating any ratio, compliance with any test,
usage of any baskets hereunder (if applicable) and Consolidated EBITDA and for purposes of determining whether there exists any Default or Event of Default (and all such calculations on and after the Election Date until the termination, expiration,
passing, rescission, retraction or rescindment of such commitment, definitive agreement or similar event shall be made on a pro forma basis giving effect thereto and all related transactions in connection therewith).
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If the Company or a Restricted Subsidiary makes a Restricted Payment which at the time of
the making of such Restricted Payment would in the good faith determination of the Company be permitted under the provisions of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture
notwithstanding any subsequent adjustments made in good faith to the Company’s financial statements affecting Consolidated Net Income or Consolidated EBITDA of the Company for any period.
For the avoidance of doubt, this Section 3.3 shall not restrict the making of any regularly scheduled interest
payment, mandatory prepayment or “AHYDO catch-up payment” with respect to any Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under this Indenture.
Section 3.4 Limitation on Restrictions on Distributions from Restricted Subsidiaries.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(1) pay dividends or
make any other distributions in cash or otherwise on its Capital Stock or pay any Indebtedness or other obligations owed to the Company or any Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted Subsidiary; or
(3) sell, lease or transfer any of its property or assets to the Company or any Restricted Subsidiary;
provided that (x) the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating
distributions being paid on common stock and (y) the subordination of (including the application of any standstill requirements to) loans or advances made to the Company or any Restricted Subsidiary to other Indebtedness Incurred by the Company
or any Restricted Subsidiary shall not be deemed to constitute such an encumbrance or restriction.
(b) The provisions of
Section 3.4(a) shall not prohibit:
(1) any encumbrance or restriction pursuant to (a) any
Credit Facility or (b) any other agreement or instrument, in each case, in effect at or entered into on the Issue Date;
(2) any encumbrance or restriction pursuant to the Note Documents or the First Lien Notes Documents;
(3) any encumbrance or restriction pursuant to applicable law, rule, regulation or order;
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(4) any encumbrance or restriction pursuant to an agreement or instrument of
a Person or relating to any Capital Stock or Indebtedness of a Person, entered into on or before the date on which such Person was acquired by or merged, consolidated or otherwise combined with or into the Company or any Restricted Subsidiary, or
was designated as a Restricted Subsidiary or on which such agreement or instrument is assumed by the Company or any Restricted Subsidiary in connection with an acquisition of assets (other than Capital Stock or Indebtedness Incurred as consideration
in, or to provide all or any portion of the funds utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was acquired by the Company or was merged, consolidated or
otherwise combined with or into the Company or any Restricted Subsidiary or entered into in contemplation of or in connection with such transaction) and outstanding on such date; provided that, for the purposes of this clause (4), if another
Person is the Successor Company, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed by the Company or any Restricted Subsidiary when such Person becomes the Successor Company;
(5) any encumbrance or restriction: (i) that restricts in a customary manner the subletting, assignment or transfer
of any property or asset that is subject to a lease, license or similar contract or agreement, or the assignment or transfer of any lease, license or other contract or agreement; (ii) contained in mortgages, pledges, charges or other security
agreements permitted under this Indenture or securing Indebtedness of the Company or a Restricted Subsidiary permitted under this Indenture to the extent such encumbrances or restrictions restrict the transfer or encumbrance of the property or
assets subject to such mortgages, pledges, charges or other security agreements; (iii) contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Company 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 Company or such Restricted Subsidiary
that are 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 Company or such Restricted Subsidiary or the assets or property of another Restricted
Subsidiary; or (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Company or any Restricted Subsidiary;
(6) any encumbrance or restriction pursuant to Purchase Money Obligations and Finance Lease Obligations permitted under this
Indenture, in each case, that impose encumbrances or restrictions on the property so acquired;
(7) any encumbrance or
restriction imposed pursuant to an agreement entered into for the direct or indirect sale or disposition to a Person of all or substantially all of the Capital Stock or assets of the Company or any Restricted Subsidiary (or the property or assets
that are subject to such restriction) pending the closing of such sale or disposition;
(8) customary provisions in leases,
licenses, shareholder agreements, joint venture agreements, and other similar agreements, organizational documents and instruments;
(9) encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order,
or required by any regulatory authority;
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(10) any encumbrance or restriction on cash or other deposits or net worth
imposed by customers under agreements entered into in the ordinary course of business or consistent with past practice;
(11) any encumbrance or restriction pursuant to Hedging Obligations;
(12) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be Incurred or issued
subsequent to the Issue Date pursuant to Section 3.2 that impose restrictions solely on the Foreign Subsidiaries party thereto or their Subsidiaries;
(13) restrictions created in connection with any Qualified Securitization Financing or Receivables Facility that, in the good
faith determination of the Company, are necessary or advisable to effect such Securitization Facility or Receivables Facility;
(14) any encumbrance or restriction arising pursuant to an agreement or instrument relating to any Indebtedness, shall only be
permitted if such Indebtedness is permitted to be Incurred subsequent to the Issue Date pursuant to Section 3.2 if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not
materially less favorable to the Holders than (i) the encumbrances and restrictions contained in the Credit Agreement, together with the security documents associated therewith, or this Indenture as in effect on the Issue Date or (ii) in
comparable financings (as determined in good faith by the Company) and where, in the case of clause (ii), either (A) the Company determines at the time of entry into such agreement or instrument that such encumbrances or restrictions will not
adversely affect, in any material respect, the Company’s ability to make principal or interest payments on the Notes or (B) such encumbrance or restriction applies only during the continuance of a default relating to such agreement or
instrument;
(15) any encumbrance or restriction existing by reason of any lien permitted under
Section 3.6; or
(16) any encumbrance or restriction pursuant to an agreement or instrument
effecting a refinancing of Indebtedness Incurred pursuant to, or that otherwise refinances, an agreement or instrument referred to in clauses (1) to (15) of this paragraph or this clause (an “Initial Agreement”) or contained
in any amendment, supplement or other modification to an agreement referred to in clauses (1) to (15) of this paragraph or this clause (16); provided, however, that the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such agreement or instrument are no less favorable in any material respect to the Holders taken as a whole than the encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such
refinancing or amendment, supplement or other modification relates (as determined in good faith by the Company).
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Section 3.5 Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or
by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as
determined in good faith by the Company, of the shares and assets subject to such Asset Disposition (including, for the avoidance of doubt, if such Asset Disposition is a Permitted Asset Swap);
(2) in any such Asset Disposition, or series of related Asset Dispositions (except to the extent the Asset Disposition is a
Permitted Asset Swap), at least 75% of the consideration from such Asset Disposition, together with all other Asset Dispositions since the Issue Date (on a cumulative basis), (including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) received by the Company or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; and
(3) within 360 days from the later of (A) the date of such Asset Disposition and (B) the receipt of the Net Available
Cash from such Asset Disposition (as may be extended by an Acceptable Commitment as set forth below, the “Proceeds Application Period”), an amount equal to the Net Available Cash is applied:
(i) to the extent the Company or any Restricted Subsidiary, as the case may be, elects (or is required by the terms of any
Indebtedness), (a) to reduce, prepay, repay or purchase First Lien Obligations, including Indebtedness under the First Lien Notes and the Credit Agreements (or any Refinancing Indebtedness in respect thereof); provided that any reduction in
revolving commitments (whether or not coupled with a mandatory prepayment) shall be deemed a prepayment in a corresponding amount for purposes of this Section 3.5; provided further that, in connection with any
prepayment, repayment or purchase of Indebtedness pursuant to this clause (a), the Company or such Restricted Subsidiary will retire such Indebtedness, (b) to reduce, prepay, repay or purchase Indebtedness with Pari Passu Lien Priority relative
to the Notes; provided that (i) any reduction in revolving commitments (whether or not coupled with a mandatory prepayment) shall be deemed a prepayment in a corresponding amount for purposes of this Section 3.5
and (ii) the Company shall equally and ratably reduce Obligations under the Notes as provided under Section 5.7 or purchase Notes through open-market purchases or in privately negotiated transactions at a purchase
price no less than 100% of the principal amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased; provided further that, in connection with any prepayment, repayment or purchase of Indebtedness
pursuant to this clause (b), the Company or such Restricted Subsidiary will retire such Indebtedness; or (c) to make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer, and, no more than on a pro rata
basis, make payments with respect to other Second Lien Obligations, as set forth below) to redeem Notes as provided under Section 5.7 (provided, further, that if any such offer to purchase any Notes is made, such amount
will be deemed repaid to the extent of the amount of such offer, whether or not accepted by the holders of such Notes), or purchase Notes through open-market purchases or in privately negotiated transactions at a purchase price no less than 100% of
the principal amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased; and
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(ii) to the extent the Company or any Restricted Subsidiary elects,
(a) to invest in or commit to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary equal to the amount of Net Available Cash received by the Company or another Restricted Subsidiary)
or (b) to invest in any one or more businesses, properties or assets that replace the businesses, properties and/or assets that are the subject of such Asset Disposition (provided that any such business, properties and/or assets will be, or
will be held by, one or more Restricted Subsidiaries), with any such investment made by way of a capital or other lease valued at the present value of the minimum amount of payments under such lease (as reasonably determined by the Company);
provided, however, that such Additional Assets shall be pledged as Collateral (unless such Additional Assets are Excluded Property and are not pledged to secure any other Second Lien Obligations) under the Notes Collateral Documents and in
accordance with this Indenture substantially simultaneously with such investment to the extent the assets or property disposed of constituted Collateral; provided further that a binding agreement shall be treated as a permitted application of
Net Available Cash from the date of such commitment with the good faith expectation that an amount equal to Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable
Commitment”); or
(iii) any combination of the foregoing.
provided that (1) pending the final application of the amount of any such Net Available Cash pursuant to this
Section 3.5, the Company or the applicable Restricted Subsidiaries may apply such Net Available Cash temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Net Available Cash in
any manner not prohibited by this Indenture and (2) the Company (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition
(provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Disposition, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset
Disposition) and deem the amount so invested to be applied pursuant to and in accordance with clause (ii) above with respect to such Asset Disposition.
If (a) there remains Net Available Cash in excess of $25 million at the expiration of the Proceeds Application Period with respect
to any Asset Disposition or series of related Asset Dispositions, or (b) the aggregate Net Available Cash in any fiscal year exceeds $50 million (the amount of any such excess in (a) or (b), the “Excess Proceeds”),
then subject to the limitations with respect to Foreign Dispositions set forth below and after complying with any corresponding provisions with respect to the First Lien Obligations, which shall reduce the amount of Excess Proceeds correspondingly,
the Company shall, no later than ten business days after the later of (x) the expiration of the Proceeds Application Period and (y) complying with its obligations with respect to the First Lien Obligations, make an offer to purchase (an
“Asset Disposition Offer”) to
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all Holders and, if required by the terms of any Second Lien Obligations, to all holders of such Second Lien Obligations, to purchase or prepay an aggregate principal amount of Notes or Second
Lien Obligations (or reduce the commitments in a corresponding amount), as applicable, on a pro rata basis, equal to the amount of such Excess Proceeds multiplied by the Excess Proceeds Percentage (as defined below) at an offer or prepayment price
in cash in an amount equal to 100% of the principal amount thereof (or in the event such other Second Lien Obligations were issued with original issue discount, 100% of the accreted value thereof), plus accrued and unpaid interest, if any (or such
lesser price with respect to Second Lien Obligations, if any, as may be provided by the terms of such other Indebtedness), to, but not including, the date fixed for the closing of such offer, in accordance with the procedures set forth in this
Indenture and the agreement governing the Second Lien Obligations, as applicable, with respect to the Notes, in minimum denominations of $1.00 and in integral multiples of $1.00 in excess thereof. Notices of an Asset Disposition Offer or an Advance
Offer (as defined below) shall be sent by first class mail or sent electronically at least 10 days but not more than 60 days before the proposed purchase date to each Holder of the Notes at such Holder’s registered address or otherwise in
accordance with the applicable procedures of DTC, with a copy to the Trustee. Upon receipt of Net Available Cash from any Asset Disposition, the Company may satisfy the foregoing obligations with respect to such Asset Disposition by making an Asset
Disposition Offer during, but prior to the expiration of, the Proceeds Application Period (the “Advance Offer”) with respect to all, but not less than all, of the Excess Proceeds from such Asset Disposition allocable to the Notes
(in proportion to all Second Lien Obligations then outstanding) multiplied by the Excess Proceeds Percentage (the “Advance Portion”) in advance of being required to do so by this Indenture. The “Excess Proceeds
Percentage” at any time shall be, if the Consolidated First Lien Secured Leverage Ratio on a pro forma basis is (x) greater than or equal to 3.00 to 1.00, 100% (y) less than 3.00 to 1.00 but greater than or equal to 2.50 to 1.00, 50%,
or (z) less than 2.50 to 1.00, 0%.
To the extent that the aggregate amount (or accreted value, as applicable) of Notes and, if
applicable, any other Second Lien Obligations validly tendered or otherwise surrendered in connection with an Asset Disposition Offer (including pursuant to a reduction in commitments) made with Excess Proceeds (or, in the case of an Advance Offer,
the Advance Portion) is less than the amount offered in an Asset Disposition Offer (or, in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited by this
Indenture (“Declined Excess Proceeds”). If the aggregate principal amount (or accreted value, as applicable) of the Notes or, if applicable, Pari Passu Indebtedness validly tendered pursuant to any Asset Disposition Offer exceeds
the amount of Excess Proceeds (or, in the case of an Advance Offer, the Advance Portion), the Company shall allocate the Excess Proceeds among the Notes and Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate
principal amount (or accreted value, as applicable) of tendered Notes and Pari Passu Indebtedness; provided that no Notes or other Pari Passu Indebtedness will be selected and purchased in an unauthorized denomination. Upon completion of an
Asset Disposition Offer, the amount of Net Available Cash and Excess Proceeds shall be reset at zero.
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(b) Notwithstanding any other provisions of this Section 3.5,
(i) to the extent that any of or all the Net Available Cash of any Asset Disposition by a Foreign Subsidiary or a Domestic
Foreign Holding Company (a “Foreign Disposition”) is (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational documents or any agreement or (z) subject to other onerous
organizational or administrative impediments from being repatriated to the United States, the portion of such Net Available Cash so affected will not be required to be applied in compliance with this Section 3.5, and such
amounts may be retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company so long, but only so long, as the applicable local law or regulation, applicable organizational documents or agreements or other impediments will not
permit repatriation to the United States (the Company hereby agreeing to use reasonable efforts (as determined in the Company’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary or Domestic Foreign Holding
Company to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law or regulation, applicable organizational documents or other
impediments to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required such repatriation of any of such affected Net Available Cash is permitted under the applicable
local law, applicable organizational impediment or other impediment, such repatriation will be promptly effected and such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation
could be made) applied (net of additional Taxes payable or reserved against as a result thereof) (whether or not such repatriation actually occurs) in compliance with this Section 3.5; and
(ii) to the extent that the Company has determined in good faith that repatriation of, or an obligation to repatriate, any of
or all the Net Available Cash of any Foreign Disposition would have an adverse Tax consequence (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so the Company, any Restricted Subsidiary, or any of
their respective affiliates and/or direct or indirect equity owners would incur a Tax liability, including receipt of a Tax dividend, deemed dividend pursuant to Code Section 956 or a withholding Tax), the Net Available Cash so affected may be
retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company. For the avoidance of doubt, nothing in this covenant shall require the Company to cause any amounts to be repatriated to the United States (whether or not such
amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder). 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.
(c) For the purposes of
Section 3.5(a)(2) hereof, the following will be deemed to be cash:
(1) the assumption by the
transferee of Indebtedness or other liabilities, contingent or otherwise of the Company or a Restricted Subsidiary (other than Indebtedness of the Company or a Guarantor which is expressly subordinated in right of payment to the Notes pursuant to a
written agreement) and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness or other liability in connection with such Asset Disposition;
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(2) securities, notes or other obligations received by the Company or any
Restricted Subsidiary of the Company from the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash and Cash Equivalents (to the extent of
the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Disposition;
(3)
Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such
Indebtedness in connection with such Asset Disposition;
(4) consideration consisting of Indebtedness of the Company (other
than Indebtedness of the Company or a Guarantor which is expressly subordinated in right of payment to the Notes pursuant to a written agreement) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary; and
(5) any Designated Non-Cash Consideration received by the Company or any
Restricted Subsidiary in such Asset Dispositions having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this
Section 3.5 that is at that time outstanding, not to exceed the greater of $35 million and 10.0% of LTM EBITDA (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).
(d) To the extent that the
provisions of any securities laws, rules or regulations, including Rule 14e-1 under the Exchange Act, conflict with the provisions of this Indenture, the Company shall not be deemed to have breached its
obligations described in this Indenture by virtue of compliance therewith.
(e) The provisions of this Indenture relative to the
Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Disposition may be waived or modified with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.
(f) To the extent that the provisions of any First Lien Documents or any Intercreditor Agreement conflict with the provisions of this
Indenture with respect to the application of proceeds of Asset Dispositions, so long as the Company has complied with the applicable provisions in the applicable First Lien Document or the applicable Intercreditor Agreement, as the case may be, the
Company shall be deemed to have complied with the applicable provisions of this Indenture.
Section 3.6 Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, Incur or suffer to exist any Lien that secures Obligations under any Indebtedness on any asset or property of the Company or any Restricted
Subsidiary, unless such Lien is a Permitted Lien.
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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 3.7 Additional Guarantees.
(a) Upon the formation or acquisition of any new direct or indirect Restricted Subsidiary (other than an Excluded Subsidiary) by any Note
Party, the designation in accordance with Section 3.20 of any existing direct or indirect Subsidiary as a Restricted Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary:
(1) the Company shall cause such Restricted Subsidiary to, within 60 days, execute and deliver a supplemental indenture
substantially in the form of Exhibit B to this Indenture providing for a Guarantee by such Restricted Subsidiary and joinders to the applicable Notes Collateral Documents or new Notes Collateral Documents, except that with respect to a guarantee of
Indebtedness of the Company or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Note 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 or such Guarantor’s Guarantee of the Notes; and
(2) such Restricted Subsidiary shall waive and will not in any manner whatsoever claim or take the benefit or advantage of, any
rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Guarantee until payment in full of Obligations under this
Indenture.
(b) The Company may elect, in its sole discretion, to cause or allow, as the case may be, any Subsidiary or any of its Parent
Entities that is not otherwise required to be a Guarantor to become a Guarantor, in which case, such Subsidiary or Parent Entity shall not be required to comply with the 60-day period described in
Section 3.7(a) and such Guarantee may be released at any time in the Company’s sole discretion so long as any Indebtedness of such Subsidiary then outstanding could have been incurred by such Subsidiary (either
(x) when so incurred or (y) at the time of the release of such Guarantee) assuming such Subsidiary were not a Guarantor at such time.
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Section 3.8 Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to enter into or conduct any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving aggregate value in excess of the greater of $40 million and 10.0% of LTM EBITDA
unless:
(1) the terms of such Affiliate Transaction taken as a whole are not materially less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could be obtained in a comparable transaction at the time of such transaction or the execution of the agreement providing for such transaction in arm’s length dealings with a
Person who is not such an Affiliate; and
(2) in the event such Affiliate Transaction involves an aggregate value in excess
of the greater of $75 million and 20.0% of LTM EBITDA, the terms of such transaction have been approved by a majority of the members of the Board of Directors.
Any Affiliate Transaction shall be deemed to have satisfied the requirements set forth in clause (2) of this Section 3.8(a) if
such Affiliate Transaction is approved by a majority of the Disinterested Directors, if any.
(b) The provisions of
Section 3.8(a) above shall not apply to:
(1) any Restricted Payment or other transaction
permitted to be made or undertaken pursuant to Section 3.3 (including Permitted Payments) or any Permitted Investment;
(2) any issuance, transfer or sale of Capital Stock other than Disqualified Stock, options, other equity-related interests or
other securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, or entering into, or maintenance of, any employment, consulting, collective bargaining or benefit plan, program, agreement or
arrangement, related trust or other similar agreement and other compensation arrangements, options, warrants or other rights to purchase Capital Stock of the Company, any Restricted Subsidiary or any Parent Entity, restricted stock plans, long-term
incentive plans, stock appreciation rights plans, participation plans or similar employee benefits or consultants’ plans (including valuation, health, insurance, deferred compensation, severance, retirement, savings or similar plans, programs
or arrangements) or indemnities provided on behalf of officers, employees, directors or consultants approved by the Board of Directors of the Company, in each case in the ordinary course of business or consistent with past practice;
(3) any Management Advances and any waiver or transaction with respect thereto;
(4) (a) any transaction between or among the Company and any Restricted Subsidiary (or entity that becomes a Restricted
Subsidiary as a result of such transaction), or between or among Restricted Subsidiaries and (b) any merger, amalgamation or consolidation with any Parent Entity, provided that such Parent Entity shall have no material liabilities and no
material assets other than cash, Cash Equivalents and the Capital Stock of the Company and such merger, amalgamation or consolidation is otherwise consummated in compliance with this Indenture;
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(5) the payment of compensation, fees, costs and reimbursement of expenses
to, and customary indemnities (including under customary insurance policies) and employee benefit and pension expenses provided on behalf of, directors, officers, consultants or employees (or their respective Controlled Investment Affiliates or
Immediate Family Members) of the Company, any Parent Entity or any Restricted Subsidiary (whether directly or indirectly and including through any Controlled Investment Affiliate or Immediate Family Member of such directors, officers or employees);
(6) the entry into and performance of obligations of the Company or any of its Restricted Subsidiaries under the terms of
any transaction arising out of, and any payments pursuant to or for purposes of funding, any agreement or instrument in effect as of or on the Issue Date, as these agreements and instruments may be amended, modified, supplemented, extended, renewed
or refinanced from time to time in accordance with the other terms of this Section 3.8 or to the extent not more disadvantageous to the Holders in any material respect in the reasonable determination of the Company when
taken as a whole as compared to the applicable agreement as in effect on the Issue Date;
(7) any transaction effected as
part of a Qualified Securitization Financing or Receivables Facility, any disposition or acquisition of Securitization Assets, Receivables Assets or related assets in connection with any Qualified Securitization Financing or Receivables Facility;
(8) transactions with customers, vendors, clients, joint venture partners, suppliers, contractors, distributors or
purchasers or sellers of goods or services, in each case in the ordinary course of business or consistent with past practice, which are fair to the Company or the relevant Restricted Subsidiary, in the reasonable determination of the Board of
Directors or the senior management of the Company or the relevant Restricted Subsidiary, or are on terms, taken as a whole, that are not materially less favorable than those that could reasonably have been obtained at such time from an unaffiliated
party;
(9) any transaction between or among the Company or any Restricted Subsidiary and any Person that is an Affiliate
of the Company or an Associate or similar entity solely because the Company or a Restricted Subsidiary or any Affiliate of the Company or a Restricted Subsidiary or any Affiliate of any Permitted Holder owns an equity interest in or otherwise
controls such Affiliate, Associate or similar entity;
(10) issuances, transfers or sales of Capital Stock (other than
Disqualified Stock or Designated Preferred Stock) of the Company or options, warrants or other rights to acquire such Capital Stock and the granting of registration and other customary rights (and the performance of the related obligations) in
connection therewith or any contribution to capital of the Company or any Restricted Subsidiary;
(11) [reserved];
(12) [reserved];
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(13) the Transactions and the payment of all fees, costs and expenses
(including all legal, accounting and other professional fees, costs and expenses) related to the Transactions, in each case as disclosed in the Exchange Offering Memorandum;
(14) transactions in which the Company or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from
an Independent Financial Advisor stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or meets the requirements of Section 3.8(a)(1);
(15) the existence of, or the performance by the Company or any Restricted Subsidiaries of its obligations under the terms of,
any equityholders, investor rights or similar agreement (including any registration rights agreement or purchase agreements related thereto) to which it is party as of the Issue Date and any similar agreement that it may enter into thereafter;
provided, however, that the existence of, or the performance by the Company or any Restricted Subsidiary of its obligations under any future amendment to the equityholders’ agreement or under any similar agreement entered into
after the Issue Date will only be permitted under this clause to the extent that the terms of any such amendment or new agreement are not otherwise, when taken as a whole, more disadvantageous to the Holders in any material respect in the reasonable
determination of the Company than those in effect on the Issue Date;
(16) any purchase by the Company’s Affiliates
of Indebtedness or Disqualified Stock of the Company or any of their Restricted Subsidiaries the majority of which Indebtedness or Disqualified Stock is purchased by Persons who are not the Company’s Affiliates; provided that such
purchases by the Company’s Affiliates are on the same terms as such purchases by such Persons who are not the Company’s Affiliates;
(17) (i) investments by Affiliates in securities or loans of the Company or any of its Restricted Subsidiaries (and payment of
reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted
Subsidiary generally to other non-affiliated third party investors on the same or more favorable terms and (ii) payments to Affiliates in respect of securities or loans of the Company or any of its
Restricted Subsidiaries contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Company and its Restricted Subsidiaries, in each case, in accordance with the terms of such securities or loans;
(18) payments by the Company (and any Parent Entity) and its Restricted Subsidiaries pursuant to any tax sharing agreements or
other equity agreements in respect of “Related Taxes” among the Company (and any such Parent Entity) and its Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Company and
its Subsidiaries;
(19) payments, Indebtedness and Disqualified Stock (and cancellation of any thereof) of the Company 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 or consultant (or their respective Controlled
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Investment Affiliates or Immediate Family Members) of the Company, 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; and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any
supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers, managers or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) that are, in each case, approved
by the Board of Directors of the Company in good faith;
(20) any management equity plan, stock option plan, phantom equity
plan or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement between the
Company or its Restricted Subsidiaries and any distributor, employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members) approved by the reasonable
determination of the Company;
(21) any transition services arrangement, supply arrangement or similar arrangement entered
into in connection with or in contemplation of the disposition of assets or equity interests in any Restricted Subsidiary permitted under Section 3.5 or entered into with any Business Successor, in each case, that the
Company determines in good faith is either fair to the Company or otherwise on customary terms for such type of arrangements in connection with similar transactions;
(22) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the day such Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary as described in Section 3.20 and pledges of Capital Stock of Unrestricted Subsidiaries;
(23) (i) any lease entered into between the Company or any Restricted Subsidiary, as lessee, and any Affiliate of the Company,
as lessor and (ii) any operational services or other arrangement entered into between the Company or any Restricted Subsidiary and any Affiliate of the Company, in each case, which is approved as being on arm’s length terms by the
reasonable determination of the Company;
(24) intellectual property licenses and research and development agreements in
the ordinary course of business or consistent with past practice;
(25) payments to or from, and transactions with, any
Subsidiary or any joint venture in the ordinary course of business or consistent with past practice (including any cash management arrangements or activities related thereto);
(26) the payment of fees, costs and expenses related to registration rights and indemnities provided to equityholders pursuant
to equityholders, investor rights, registration rights or similar agreements;
(27) transactions undertaken in the ordinary
course of business pursuant to membership in a purchasing consortium; and
(28) Permitted Intercompany Activities and
Permitted Tax Restructurings or Intercompany License Agreements.
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In addition, if the Company 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 Company 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 Company 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 Company 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 Company or a Restricted Subsidiary
to be deemed an Affiliate Transaction).
Section 3.9 Change of Control.
(a) If a Change of Control occurs, unless a third party makes a Change of Control Offer or the Company has previously or substantially
concurrently therewith delivered a redemption notice with respect to all of the outstanding Notes as set forth under Section 5.7(a), Section 5.7(c) or Section 5.7(e), the
Company will make an offer (the “Change of Control Offer”) to purchase all of the Notes 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 repurchase, subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on the relevant interest payment date. Within 30 days following any
Change of Control, the Issuer will deliver or cause to be delivered a notice of such Change of Control Offer electronically in accordance with the applicable procedures of DTC or by first class mail, with a copy to the Trustee, to each Holder of
Notes at the address of such Holder appearing in the security register or otherwise in accordance with the applicable procedures of DTC, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 3.9, and that all Notes
properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
(2) 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 delivered (the “Change of Control Payment Date”);
(3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
(4) 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 will cease to accrue interest, on the Change of Control Payment Date;
(5) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the applicable
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, or otherwise comply with DTC procedures;
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(6) that Holders will be entitled to withdraw their tendered Notes and their
election to require the Issuer to purchase such Notes; provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a
telegram, facsimile transmission or letter 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 and its election to have such Notes
purchased, or otherwise comply with DTC procedures;
(7) that Holders whose Notes are being purchased only in part will 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 $1.00 or any integral multiple of $1.00 in excess of $1.00;
(8) if such notice is delivered prior to the occurrence of a Change of Control, stating that the Change of Control Offer
is conditional on the occurrence of such Change of Control; and
(9) the other instructions, as determined by the Issuer,
consistent with this Section 3.9, that a Holder must follow.
The applicable Paying Agent will promptly deliver
to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new Note will be in a minimum principal amount of $1.00 or in integral multiples of $1.00 in excess thereof. The Issuer will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after
an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record
date.
(b) On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer,
(2) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all
Notes or portions thereof so tendered, and
(3) 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.
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(c) The Issuer will not be required to make a Change of Control Offer following a Change of
Control if (x) 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 withdrawn under such Change of Control Offer or (y) a notice of redemption of all outstanding Notes has been given pursuant to Section 5.7 hereof unless and until there is a default
in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied.
(d) Notwithstanding anything to the contrary in this Section 3.9, a Change of Control Offer may be made in advance
of a Change of Control, conditional upon such Change of Control.
(e) [Reserved]
(f) 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 through the facilities of DTC, subject to its rules and regulations.
(g) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Issuer shall not be deemed to have breached its obligations described in this Indenture by virtue of compliance therewith. 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.
Section 3.10 Reports.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or
otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, from and after the Issue Date, the Company shall furnish to the Trustee:
(1) within 120 days after the end of each fiscal year (or such longer period permitted pursuant to rules and regulations
promulgated by the SEC if the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act) ending after the Issue Date (or if such day is not a Business Day, on the next succeeding Business Day), all financial
information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and a report on the annual financial statements by the Company’s independent registered public accounting firm;
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(2) within 60 days after the end of each of the first three fiscal quarters
of each fiscal year (or such longer period permitted pursuant to rules and regulations promulgated by the SEC if the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act) ending after the Issue Date (or if
such day is not a Business Day, on the next succeeding Business Day), all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form,
filed with the SEC, including “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and financial statements prepared in accordance with GAAP; and
(3) promptly after the occurrence of any of the following events, all current reports that would be required to be filed with
the SEC on Form 8-K or any successor or comparable form (if the Company had been a reporting company under Section 13 or 15(d) of the Exchange Act); provided, that the foregoing shall not obligate
the Company to make available (i) any information otherwise required to be included on a Form 8-K regarding the occurrence of any such events if the Company determines in its good faith judgment that such
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 Company and its Restricted Subsidiaries taken as a whole, (ii) a
summary of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries), (iii)
copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K or (iv) any trade secrets, privileged or confidential
information obtained from another Person and competitively sensitive information:
(A) the entry into or termination of
material agreements;
(B) significant acquisitions or dispositions (which shall only be with respect to acquisitions or
dispositions that are significant pursuant to the definition of “Significant Subsidiary”);
(C)
bankruptcy or insolvency;
(D) cross-default under direct material financial obligations;
(E) a change in the Company’s certifying independent auditor;
(F) the appointment or departure of directors or executive officers (with respect to the principal executive officer,
president, principal financial officer, principal accounting officer and principal operating officer only);
(G) non-reliance on previously issued financial statements; and
(H) change of control
transactions,
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in each case, in a manner that complies in all material respects with the requirements specified in such
form, except as described above or below and subject to exceptions consistent with the presentation of information in the Exchange Offering Memorandum; provided, however, that the Company shall not be required to provide (i) any
information that is not otherwise similar to information included in the Exchange Offering Memorandum, (ii) separate financial statements or other information contemplated by Rule 3-05, 3-09, Rule 3-10, 13-01, 13-02 or Rule 3-16 or 4-08 of Regulation S-X, or in each case any successor provisions or any schedules required by Regulation S-X, (iii) information
required by Regulation G under the Exchange Act or Item 10, Item 302, Item 402 or Item 601 of Regulation S-K (or any successor provision), (iv) XBRL exhibits, (v) earnings per share information,
(vi) information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and
IC-27444A, (vii) climate-related disclosures related to SEC Release Nos. 33-11275 and 34-99678, including, without
limitation, any information, reports or exhibits required by Article 14 of Regulation S-X or Item 1506 of Regulation S-K and (viii) other information customarily
excluded from an offering memorandum, including any information that is not otherwise of the type and form included in the Exchange Offering Memorandum relating to the Notes. In addition, notwithstanding the foregoing, the Company will not be
required to (i) comply with Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, or (ii) otherwise furnish any information, certificates or reports required by Items 307 or 308 of Regulation S-K (or any successor provision). To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as
applicable, the Company 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; provided that such cure shall not otherwise affect the rights
of the Holders under Section 6.1 hereof if Holders of at least 30% in aggregate principal amount of the then total outstanding Notes have declared the principal, premium, if any, interest and any other monetary obligations
on all the then outstanding Notes to be due and payable immediately and such declaration shall not have been rescinded or cancelled prior to such cure. In addition, to the extent not satisfied by the foregoing, the Company shall agree that, for so
long as any Notes are outstanding, it shall furnish to Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries hold in the
aggregate more than 5.0% of the Total Assets of the Company, then the annual and quarterly financial information required by Section 3.10(a)(1) and (2) will include a reasonably detailed presentation, either on
the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company
and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.
(c) Substantially concurrently with the furnishing of such information to the Trustee pursuant to Section 3.10(a), the Company shall also
use its commercially reasonable efforts to post copies of such information required by Section 3.10(a) and (b) on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to the
Holders, beneficial owners of the Notes, prospective investors in the Notes (which prospective investors shall be limited to “qualified institutional buyers” within the meaning of Rule
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144A of the Securities Act or non-U.S. persons (as defined in Regulation S under the Securities Act) that certify their status as such to the reasonable
satisfaction of the Company), and securities analysts and market making financial institutions that are, in the case of securities analysts and market making financial institutions, reasonably satisfactory to the Company. To the extent the Company
determines in good faith that it cannot make such reports available in the manner described in the preceding sentence after the use of its commercially reasonable efforts, the Company shall furnish such reports to the Holders of the Notes and
beneficial owners of the Notes, upon their request. The Company may condition the delivery of any such reports to such Holders, beneficial owners, prospective investors in the Notes and securities analysts and market making financial institutions on
the agreement of such Persons to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their
investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein) and information.
(d) The Company may satisfy its obligations pursuant to this Section 3.10 with respect to financial information
relating to the Company by furnishing financial information relating to a Parent Entity; provided that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to
such Parent Entity (and other Parent Entities included in such information, if any), on the one hand, and the information relating to the Company and its Restricted Subsidiaries on a standalone basis, on the other hand. For the avoidance of doubt,
the consolidating information referred to in the proviso in the preceding sentence need not be audited.
(e) Notwithstanding anything to
the contrary set forth in this Section 3.10, if the Company or any Parent Entity of the Company has furnished to the Holders of Notes or filed with the SEC the reports described in this
Section 3.10 within the time period specified with respect to the Company or any Parent Entity of the Company, the Company shall be deemed to be in compliance with the provisions of this
Section 3.10.
(f) The Trustee shall have no duty to review or analyze any reports furnished to it. Delivery of
reports, information and documents to the Trustee under this Indenture is for informational purposes only and the information 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 Company’s compliance with any of its covenants (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall not be obligated to
monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants in this Indenture or with respect to any reports or other documents filed with the SEC or EDGAR or any website, or participate in any
conference calls.
Section 3.11 [Reserved].
Section 3.12 Maintenance of Office or Agency. The Issuer shall maintain an office or agency where the Notes may be presented or
surrendered for payment, where, if applicable, the Notes may be surrendered for registration of transfer or exchange. The Corporate Trust Office of the Trustee shall be such office or agency of the Issuer, unless the Issuer shall designate and
maintain some other office or agency for one or more of such purposes. The Issuer shall give
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prompt written notice to the Trustee of any change in the location of any 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 and surrenders may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations and
surrenders; provided that the Trustee shall not be deemed an agent of the Issuer for service of legal process.
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 any such designation. The Issuer shall give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of any such other office or agency. No office of the Trustee shall be an office or agency of the Issuer for the purposes of service of legal process on the Issuer or any
Guarantor.
Section 3.13 [Reserved].
Section 3.14 [Reserved].
Section 3.15 [Reserved].
Section 3.16 Compliance Certificate. The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of
the Issuer an Officer’s Certificate, the signer of which shall be the principal executive officer, principal financial officer, principal accounting officer, principal legal officer, secretary or treasurer of the Issuer, stating that in the
course of the performance by the signer of his or her duties as an Officer of the Issuer he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred
during the previous fiscal year; provided that no such Officer’s Certificate shall be required for any fiscal year ended prior to the Issue Date. If such Officer does have such knowledge, the certificate shall describe the Default or
Event of Default, its status and the action the Issuer is taking or proposes to take with respect thereto.
Section 3.17 Further
Instruments and Acts. Upon request of the Trustee or as necessary to comply with future developments or requirements, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 3.18 Limitations on Dispositions of Material
Collateral. The Company may not designate a Restricted Subsidiary as an Unrestricted Subsidiary unless such Restricted Subsidiary does not have legal or beneficial ownership of, or an exclusive license to, any Collateral (other than cash
and Cash Equivalents) that is material to the business of the Company and its Restricted Subsidiaries, taken as a whole, and neither the Company nor any Restricted Subsidiary shall be permitted to transfer to any Unrestricted Subsidiary or Non-Guarantor Subsidiary legal or beneficial ownership of, or an exclusive license to, any Collateral (other than cash and Cash Equivalents) that is material to the business of the Company and its Restricted
Subsidiaries, taken as a whole; provided, that the foregoing shall not be deemed or interpreted to restrict (i) any exclusive Intellectual Property licenses granted to a such Restricted Subsidiary for a legitimate business purpose that
is only exclusive with respect to a particular type or field (or types or fields) of usage or a certain territory or group of territories, in each case that does not effectively result in the transfer of beneficial ownership of such Intellectual
Property or (ii) any non-exclusive license.
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Section 3.19 Statement by Officers as to Default. The Issuer shall deliver to
the Trustee, as soon as possible and in any event within 30 days after the Issuer becomes aware of the occurrence of any Default or Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its
status and the actions which the Issuer is taking or proposes to take with respect thereto.
Section 3.20 Designation of
Restricted and Unrestricted Subsidiaries. The Company may not designate any Restricted Subsidiary to be an Unrestricted Subsidiary, and may not otherwise permit any Subsidiary of the Company (including any Subsidiary existing on the Issue Date)
to be an Unrestricted Subsidiary, in each case, without the prior written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and
will reduce the amount available for Restricted Payments under Section 3.3 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by an Officer’s
Certificate certifying that such designation complies with the preceding conditions. 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 Company as of such date and, if such Indebtedness is not permitted to be incurred as of
such date by Section 3.2 hereof, the Company will be in default of such covenant.
The Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of
such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 3.2 hereof (including pursuant to Section 3.2(b)(5) treating such redesignation
as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default or Event of Default would be in existence
following such designation. Any such designation by the Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.
Section 3.21 Suspension of Certain Covenants on Achievement of Investment Grade Status. Beginning on the first day (a) the
Notes have achieved Investment Grade Status and (b) no Default or Event of Default has occurred and is continuing under this Indenture, and ending on a Reversion Date (such period a “Suspension Period”), the Company and its
Restricted Subsidiaries will not be subject to Sections 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 3.18, 3.22 and 4.1(a)(3) (the “Suspended Covenants”).
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If at any time the Notes cease to have such Investment Grade Status, then the Suspended
Covenants shall thereafter be reinstated as if such covenants had never been suspended (the “Reversion Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or
assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain Investment Grade Status and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer
be in effect for such time that the Notes maintain an Investment Grade Status); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect
to the Suspended Covenants based on, and none of the Company 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 prior to the Reversion Date that were permitted at such time, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period.
On the Reversion Date, all Indebtedness Incurred during the Suspension Period will be deemed to have been outstanding on the Issue Date, so
that it is classified as permitted under Section 3.2(b)(1). Restricted Payments made during the Suspension Period will not reduce the amount available to be made as Restricted Payments under
Section 3.3. The Company may not designate any Restricted Subsidiary as an Unrestricted Subsidiary during the Suspension Period. On the Reversion Date, the amount of Excess Proceeds shall be reset at zero. Any Affiliate
Transaction entered into after the Reversion Date pursuant to an agreement entered into during any Suspension Period will be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under
Section 3.8(b)(6). Any encumbrance or restriction on the ability of any Restricted Subsidiary to take any action described in Section 3.4(a)(1), (2) and (3) that becomes effective during the
Suspension Period will be deemed to have existed on the Issue Date, so that it is classified as permitted under Section 3.4(b)(1). In addition, any future obligation to grant further Note Guarantees shall be released. All
such further obligations to grant Guarantees shall be reinstated on the Reversion Date. As described above, however, no Default, Event of Default or breach of any kind shall be deemed to have occurred as a result of the Reversion Date occurring on
the basis of any actions taken or the continuance of any circumstances resulting from actions taken or the performance of obligations under agreements entered into by the Company or any of the Restricted Subsidiaries during the Suspension Period
(other than agreements to take actions after the Reversion Date that would not be permitted outside of the Suspension Period entered into in contemplation of the Reversion Date).
On and after each Reversion Date, the Company and its Subsidiaries will be permitted to consummate the transactions contemplated by any
contract entered into during the Suspension Period, so long as such contract and such consummation would have been permitted during such Suspension Period.
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The Company shall notify the Trustee of the commencement or cessation of any Suspension
Period within thirty (30) days of the applicable commencement or cessation of any Suspension Period; provided that the failure by the Company to so notify the Trustee shall not constitute a Default or Event of Default under this Indenture. The
Trustee shall have no duty to monitor the ratings of the Notes, shall not be deemed to have any knowledge of the ratings of the Notes and shall have no duty to notify Holders if the Notes achieve Investment Grade Status or of the occurrence of a
Reversion Date or to independently determine if such events have occurred.
Section 3.22 Liability Management Transactions.
The Issuer shall not, and shall not permit any of the Restricted Subsidiaries or Unrestricted Subsidiaries, to consummate a Liability Management Transaction.
Section 3.23 After-Acquired Collateral.
From and after the Issue Date, and subject to the terms of this Indenture and the Notes Collateral Documents, if the Company or any Guarantor
acquires any property or rights which are of a type constituting Collateral under any Notes Collateral Document (excluding, for the avoidance of doubt, any Excluded Property or assets not required to be Collateral pursuant to this Indenture or the
Notes Collateral Documents), it will be required to execute and deliver such security instruments, financing statements and such certificates as are required under this Indenture or any Notes Collateral Document to vest in the Notes Collateral Agent
a junior-priority perfected security interest (subject to Permitted Liens and the terms of any Intercreditor Agreement) in such after-acquired collateral and to take such actions to add such after-acquired collateral to the Collateral, and thereupon
all provisions of this Indenture and the Notes Collateral Documents relating to the Collateral shall be deemed to relate to such after-acquired collateral to the same extent and with the same force and effect. For the avoidance of doubt, Opinions of
Counsel will not be required in connection with the addition of new Guarantors or in connection with the Company or such Guarantors entering into the Notes Collateral Documents or to vest in the Notes Collateral Agent a perfected security interest
in after-acquired collateral owned by the Company or such Guarantors (in each case, unless such opinions are delivered to any other Collateral Agent pursuant to corresponding provisions of a Credit Agreement).
Section 3.24 Further Assurances.
On or following the Issue Date, and subject to the terms of this Indenture, the Notes Collateral Documents and the applicable Intercreditor
Agreements, the Company and the Guarantors shall execute any and all further documents, financing statements (including continuation statements and amendments to financing statements), agreements, instruments, notices and acknowledgments and take
all further action that may be required under applicable law, or that the Notes Collateral Agent may reasonably request, in order to grant, preserve, maintain, protect and perfect (or continue the perfection of) the validity and priority (subject to
Permitted Liens and the terms of the applicable Intercreditor Agreements) of the security interests created or intended to be created by the applicable Notes Collateral Documents, all at the expense of the Company. In addition, subject to the terms
of the applicable Intercreditor Agreements, from time to time, the Company and each Guarantor will reasonably promptly secure the Obligations under the Note Documents by pledging or creating, or causing to be pledged or created, perfected security
interests with respect to the Collateral. Such security interests and Liens will be created under the Notes Collateral Documents.
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ARTICLE IV
SUCCESSOR COMPANY; SUCCESSOR PERSON
Section 4.1 Merger, Amalgamation and Consolidation.
(a) The Company shall not consolidate with or merge or amalgamate with or into or convey, transfer or lease all or substantially all its
assets, in one transaction or a series of related transactions, to any Person, unless:
(1) the Company is the surviving
Person or the resulting, surviving or transferee Person (the “Successor Company”) will be a Person organized and existing under the laws of the United States of America, any State of the United States or the District of Columbia,
and the Successor Company (if not the Company) will expressly assume, by supplemental indenture and joinders to the applicable Notes Collateral Documents or new Notes Collateral Documents, executed and delivered to the Trustee and the Notes
Collateral Agent, as applicable, all the obligations of the Company under the Notes and this Indenture and the applicable Notes Collateral Documents and if such Successor Company is not a corporation, a
co-obligor of the Notes is a corporation organized or existing under such laws;
(2) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the
applicable Successor Company or any Subsidiary of the applicable Successor Company as a result of such transaction as having been Incurred by the applicable Successor Company or such Subsidiary at the time of such transaction), no Event of Default
shall have occurred and be continuing;
(3) upon execution of an agreement to enter into such transaction, no Event of
Default shall have occurred and be continuing, and, immediately after giving pro forma effect to such transaction, either (a) the Company or the applicable Successor Company (if not the Company) would be able to Incur at least an additional
$1.00 of Indebtedness pursuant to Section 3.2(a) hereof, or (b) the Fixed Charge Coverage Ratio of the Company or the Successor Company, as the case may be, and the Restricted Subsidiaries would not be lower than it
was immediately prior to giving effect to such transaction or (c) the Consolidated Total Leverage Ratio of the Company or the Successor Company, as the case may be, and its Restricted Subsidiaries would not be higher than it was immediately
prior to giving effect to such transaction;
(4) the Company shall have delivered to the Trustee and the Notes Collateral
Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation or transfer and such supplemental indenture and joinders to the applicable Notes Collateral Documents or new Notes Collateral
Documents (if any) comply with this Indenture and an Opinion of Counsel stating that such supplemental indenture and joinders to the applicable Notes Collateral Documents or new Notes Collateral Documents (if any) have been duly authorized, executed
and delivered and are a legal, valid and binding agreement enforceable against the Successor Company; provided that in giving an Opinion of Counsel, counsel may rely on an Officer’s Certificate as to any matters of fact, including as to
satisfaction of clauses (2) and (3) above; and
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(5) to the extent any assets of the Person which is merged or consolidated
with or into the Company are assets of the type which would constitute Collateral under the Notes Collateral Documents, the Company or the Successor Company, as applicable, will take such action, if any, as may be reasonably necessary to cause such
property and assets to be made subject to the Lien of the applicable Notes Collateral Document in the manner and to the extent required in this Indenture or the applicable Notes Collateral Document and shall take all reasonably necessary action so
that such Lien is perfected to the extent required by the applicable Notes Collateral Documents.
(b) [Reserved].
(c) The Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Note
Documents, and the Company will automatically and unconditionally be released and discharged from its obligations under the Note Documents (except in the case of a lease).
(d) Notwithstanding any other provisions of this Section 4.1, (i) the Company may consolidate or otherwise combine
with, merge into or transfer all or part of its properties and assets to a Guarantor, (ii) the Company may consolidate or otherwise combine with or merge into an Affiliate that is (x) organized or existing under the laws of the
jurisdiction of the Company or the United States of America, any State of the United States or the District of Columbia or (y) incorporated or organized for the purpose of changing the legal domicile of the Company, reincorporating the Company
in another jurisdiction, or changing the legal form of the Company, (iii) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to the Company or a Guarantor,
(iv) any Restricted Subsidiary may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary and (v) the Company and its Restricted Subsidiaries may complete
any Permitted Tax Restructuring.
(e) The foregoing provisions (other than the requirements of clause (a)(2)) shall not apply to the
creation of a new Subsidiary as a Restricted Subsidiary.
(f) Subject to Section 10.2(b), no Guarantor may:
(1) consolidate with or merge or amalgamate with or into any Person;
(2) sell, convey, transfer or dispose of all or substantially all its assets, in one transaction or a series of related
transactions, to any Person; or
(3) permit any Person to merge or amalgamate with or into such Guarantor, unless:
(A) the other Person is the Company or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with
the transaction; or
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(B) (i) either (x) the Company or a Guarantor is the continuing Person
or (y) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor under its Note Guarantee, the Indenture and the applicable Notes Collateral Documents; and (ii) immediately after giving effect
to the transaction, no Event of Default has occurred and is continuing; or
(C) the transaction constitutes a sale or other
disposition or transfer (including by way of consolidation, merger or amalgamation) of the Guarantor or the conveyance, transfer, lease, sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the
Company or a Restricted Subsidiary) otherwise not prohibited by this Indenture.
Notwithstanding any other provision of this
Section 4.1, any Guarantor may (a) consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to another Guarantor or the Company, (b) consolidate or otherwise combine
with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Guarantor, reincorporating the Guarantor in another jurisdiction, or changing the legal form of the Guarantor, (c) convert into a
corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, (d) liquidate or dissolve or change its legal form if the Company
determines in good faith that such action is in the best interests of the Company and (e) complete any Permitted Tax Restructuring. Notwithstanding anything to the contrary in this Section 4.1, the Company may
contribute Capital Stock of any or all of its Subsidiaries to any Guarantor.
Any reference herein to a merger, consolidation,
amalgamation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, or an allocation of assets to a series of a limited liability
company, limited partnership or trust (or the unwinding of such a division or allocation), as if it were a merger, consolidation, amalgamation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate
Person. Any division of a limited liability company, limited partnership or trust shall constitute a separate Person hereunder (and each division of any limited liability company, limited partnership or trust that is a Subsidiary, Restricted
Subsidiary, Unrestricted Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
ARTICLE V
REDEMPTION OF SECURITIES
Section 5.1 Notices to Trustee. If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of
Section 5.7 hereof, it must furnish to the Trustee, at least 15 days (or such shorter period as the Trustee may agree) but not more than 60 days before a Redemption Date, an Officer’s Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
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Any optional redemption referenced in such Officer’s Certificate may be cancelled by
the Issuer at any time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.
Section 5.2
Selection of Notes to Be Redeemed or Purchased. If less than all of the Notes are to be redeemed pursuant to Section 5.7 or purchased in an Asset Disposition Offer pursuant to Section 3.5,
the Trustee will select Notes for redemption or purchase in compliance with the requirements of the principal securities exchange, if any, on which the Notes are listed, as certified to the Trustee by the Company, if the Notes are in global form, on
a pro rata basis, by lot, or by such other method in accordance with the applicable procedures of DTC or if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through DTC or DTC prescribes no
method of selection, the Trustee will select by lot, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption.
No Notes in an unauthorized denomination or of $1.00 in aggregate principal amount or less shall be redeemed in part. In the event of partial
redemption, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not less than 10 days nor more than 60 days prior to the Redemption Date or purchase date by the Trustee from the outstanding Notes not
previously called for redemption or purchase; provided that the Issuer shall provide the Trustee with sufficient notice of such partial redemption to enable the Trustee to select the Notes for partial redemption.
The Trustee will promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected
for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be in minimum principal amounts of $1.00 or in integral multiples of $1.00 in excess thereof. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 5.3 Notice of Redemption. At least 10 days but not more than 60 days before the Redemption Date, the Issuer will send or
cause to be sent, by electronic delivery or by first class mail postage prepaid, a notice of redemption to each Holder (with a copy to the Trustee) whose Notes are to be redeemed at the address of such Holder appearing in the security register or
otherwise in accordance with the applicable procedures of DTC, 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 a defeasance of the Notes
or a satisfaction and discharge of this Indenture pursuant to Articles VIII or XI hereto.
The notice will identify the
Notes (including the CUSIP or ISIN number) to be redeemed and will state:
(1) the Redemption Date;
(2) the redemption price;
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(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which
the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuer’s request, the Trustee will give
the notice of redemption in the Issuer’s name and at its expense; provided, however, that the Issuer has delivered to the Trustee, at least three (3) Business Days (or if any of the Notes to be redeemed are in definitive
form, five (5) Business Days) prior to the date on which the Issuer instructs the Trustee to give the notice (or such shorter period as the Trustee may agree), 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.
Notice of any redemption of the Notes
may, at the Issuer’s discretion, be given prior to the completion of a corporate transaction (including but not limited to an Equity Offering, an incurrence of Indebtedness, a Change of Control or other corporate transaction) and any
redemption notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of a related transaction. If such redemption or purchase is so subject to satisfaction of one or more
conditions precedent such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of
redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, 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 by the Redemption Date, or by the Redemption Date as so delayed. In addition, the Issuer may provide in such notice that payment of the redemption price and performance of the Issuer’s obligations with respect to
such redemption may be performed by another Person.
Section 5.4 [Reserved].
Section 5.5 Deposit of Redemption or Purchase Price. Prior to 11:00 a.m. New York City Time on the Redemption Date or purchase
date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest, if any, on all Notes to be redeemed or purchased on that date. The Trustee or the Paying
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Agent will promptly return, on or following the applicable redemption or repurchase date, 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 or purchase price of, and accrued interest, if any, on all Notes to be redeemed or purchased.
If
the Issuer complies with the provisions of the preceding paragraph, on and after the Redemption Date or purchase date, interest will cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or
purchased on or after a record date but on or prior to the related interest payment date, then any accrued and unpaid interest up to, but excluding, the Redemption Date or purchase date shall be paid on the Redemption Date or purchase date to the
Person in whose name such Note was registered at the close of business on such record date in accordance with the applicable procedures of DTC. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase
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 or purchase date until such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in Section 3.1 hereof.
Section 5.6 Notes Redeemed or Purchased in Part. Upon surrender of a Note issued in physical form that is redeemed or purchased in
part, the Issuer will issue and the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided, that each such
new Note will be in a minimum principal amount of $1.00 or in integral multiples of $1.00 in excess thereof.
In the case of a Note issued
as a global note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof; provided, that the unredeemed portion thereof will be in a minimum
principal amount of $1.00 or in integral multiples of $1.00 in excess thereof.
Section 5.7 Optional Redemption.
(a) At any time prior to June 15, 2029, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor
more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as a percentage of the principal amount of the Notes to be
redeemed) equal to 100.000% plus the relevant Applicable Premium as of, and accrued and unpaid interest, if any, to but excluding, the date of redemption (the “Redemption Date”), subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date.
(b) At any time and from time to time prior to June 15,
2029, the Company may, on one or more occasions, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40.0%
of the aggregate principal amount of Notes issued under this Indenture (together with Additional Notes) at a redemption price (expressed as a percentage of the principal amount of Notes to be redeemed) equal to 109.750%, plus accrued and unpaid
interest,
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if any, to but excluding, the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest
payment date, with the Net Cash Proceeds received by the Company of one or more Equity Offerings of the Company; provided that not less than 40.0% of the original aggregate principal amount of the then-outstanding Notes issued under this
Indenture remains outstanding immediately after the occurrence of each such redemption (excluding Notes held by the Company or any of its Restricted Subsidiaries), unless all such Notes are redeemed substantially concurrently; provided
further that each such redemption occurs not later than 180 days after the date of closing of the related Equity Offering. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6.
(c) Further, prior to June 15, 2029, the Company may, upon not less than 10 nor more than 60 days’ prior notice, with a copy
to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem the Notes issued under this Indenture (including any Additional Notes) upon the consummation of a Change of Control at a redemption price
equal to 103.000% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
(d) Except pursuant to clauses (a), (b) and (c) of this Section 5.7, the Notes will not be redeemable at the
Company’s option prior to June 15, 2029.
(e) At any time and from time to time on or after June 15, 2029, the Company may
redeem the Notes, in whole or in part, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register at the redemption prices
(expressed as percentages of principal amount of the Notes to be redeemed) set forth in the table below, plus accrued and unpaid interest thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders of record of
the Notes on the relevant record date to receive interest due on the relevant interest payment date, if redeemed during the twelve-month period beginning on June 15 of each of the years indicated in the table below:
Year
Percentage
2029
104.875
%
2030
102.4375
%
2031 and thereafter
100.000
%
(f) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of
Control Offer or Asset Disposition Offer, if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making
such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party shall have the right upon not less than 10 nor more than 60 days’ prior notice,
with a copy to the Trustee, to each Holder of Notes to the address
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of such Holder appearing in the Notes Register, given not more than 30 days following such purchase date to redeem all Notes that remain outstanding following such purchase at a redemption price
equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to but not including, the
date of such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the outstanding Notes have validly tendered and not validly withdrawn such Notes in a tender offer, including a Change of Control Offer
or Asset Disposition Offer, Notes owned by the Company or its Affiliates or by funds controlled or managed by any Affiliate of the Company, or any successor thereof, shall be deemed to be outstanding for the purposes of such tender offer.
(g) Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called
for redemption on the applicable Redemption Date.
(h) Any redemption pursuant to this Section 5.7 shall be made
pursuant to the provisions of Sections 5.1 through 5.6.
Section 5.8 Mandatory Redemption. The Company is not
required to make mandatory redemption or sinking fund payments with respect to the Notes; provided, however, that under certain circumstances, the Company may be required to offer to purchase Notes under Section 3.5
and Section 3.9. The Company, the Company’s equity holders, their respective Affiliates and members of management, among other parties, may at any time and from time to time purchase, repurchase, redeem, exchange,
defease or otherwise acquire or retire the Company’s or any of its Subsidiaries’ outstanding debt securities or loans, including the Notes, by any means other than a redemption that is subject to the provisions in
Section 5.7 (and, for the avoidance of doubt, without being subject to the pro rata requirement in Section 5.2), upon such terms, at such prices and with such considerations as the Company, the
Company’s equity holders, their respective Affiliates and members of management, among other parties, may determine, including, without limitation, in negotiated transactions, open market purchases, by tender offer or any other transactions
with one or more Holders and/or beneficial owners of Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
(1) default in any payment of interest on any Note when due and payable, continued for 30 days;
(2) default in the payment of the principal amount of or premium, if any, on any Note issued under this Indenture when due at
its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;
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(3) failure by the Company or any Guarantor to comply for 60 days after
written notice by the Trustee on behalf of the Holders or by the Holders of at least 30% in aggregate principal amount of the outstanding Notes with any agreement or obligation contained in this Indenture; provided that in the case of a
failure to comply with this Indenture provisions described under Section 3.10, such period of continuance of such default or breach shall be 180 days after written notice described in this clause (3) has been given;
(4) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary) (or the payment of which is Guaranteed by the Company or any Significant Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial
statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary)) other than Indebtedness owed to the Company or a Restricted Subsidiary whether such Indebtedness or Guarantee now exists, or is created after the
Issue Date, which default:
(A) is caused by a failure to pay principal of such Indebtedness, at its stated final maturity
(after giving effect to any applicable grace periods provided in such Indebtedness); or
(B) results in the acceleration
of such Indebtedness prior to its stated final maturity;
and, in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has been a payment default of principal at its stated final maturity (after giving effect to any applicable grace periods) or the maturity of which has been so accelerated,
aggregates to $100.0 million or more at any one time outstanding;
(5) failure by the Company or any Significant
Subsidiary (or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries) would constitute a Significant Subsidiary), to pay final judgments
aggregating in excess of $100.0 million other than any judgments covered by indemnities provided by, or insurance policies issued by, reputable and creditworthy 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;
(6) (A) any Note Guarantee by a Significant Subsidiary ceases to be in full force and effect, other than (1) in accordance
with the terms of this Indenture; or (2) in connection with the bankruptcy of a Guarantor, so long as the aggregate assets of such Guarantor and any other Guarantor whose Note Guarantee ceased or ceases to be in full force as a result of a
bankruptcy are less than $100.0 million, or (B) a Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under its Guarantee of the Notes, other than in accordance with the terms thereof or upon release of such
Note Guarantee in accordance with this Indenture;
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(7) the Company or a Significant Subsidiary (or any group of Restricted
Subsidiaries, that taken together as of the latest audited consolidated financial statements of the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary) pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it; or
(F) takes any comparable action under any foreign laws relating to insolvency;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or a Significant Subsidiary (or any group of Restricted Subsidiaries, that taken
together as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary) in an involuntary case;
(B) appoints a Custodian of the Company or a Significant Subsidiary (or any group of Restricted Subsidiaries, that taken
together as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary) for substantially all of its property;
(C) orders the winding up or liquidation of the Company or a Significant Subsidiary (or any group of Restricted Subsidiaries,
that taken together as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries, would constitute a Significant Subsidiary); or
(D) or any similar relief is granted under any foreign laws and the order, decree or relief remains unstayed and in effect for
60 consecutive days;
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(9) (i) the Liens created by the Notes Collateral Documents shall at any
time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (unless perfection is not required by this Indenture or the Notes Collateral Documents) other than (A) in accordance with
the terms of the relevant Notes Collateral Document and this Indenture, (B) the satisfaction in full of all Notes Obligations or (C) any loss of perfection that results from the failure of the Notes Collateral Agent (or its bailee pursuant
to the terms of any applicable intercreditor agreement to which the Notes Collateral Agent is a party) to maintain possession of certificates delivered to it representing securities pledged under the Notes Security Documents and (ii) such
default continues for 30 days after receipt of written notice given by the Trustee or the Holders of not less than 30% in aggregate principal amount of the then outstanding Notes; or
(10) the Company or any Guarantor that is a Significant Subsidiary (or any group of Guarantors that together, as of the latest
consolidated financial statements of the Company for a fiscal quarter end provided as required under Section 3.10, would constitute a Significant Subsidiary) shall assert, in any pleading in any court of competent
jurisdiction, that any security interest in any Notes Collateral Document is invalid or unenforceable (other than by reason of the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, the release of the Note
Guarantee of such Guarantor in accordance with the terms of this Indenture or the release of such security interest in accordance with the terms of this Indenture and the Notes Collateral Documents);
provided that a Default under clause (3), (4), (5) or (9) above will not constitute an Event of Default until the Trustee or the Holders of at
least 30% in principal amount of the outstanding Notes notify the Company of the Default (with a copy to the Trustee and the Notes Collateral Agent, as applicable, if notice is given by the Holders) and, with respect to clauses (3), (5) or
(9) above, the Company does not cure such Default within the time specified in clauses (3), (5) or (9) above after receipt of such notice; provided, further, that a notice of Default may not be given with respect to any action
taken, and reported publicly or to Holders, more than two years prior to such notice of Default. Any notice of Default, notice of acceleration or instruction to the Trustee and the Notes Collateral Agent, as applicable, to provide a notice of
Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders (each a “Directing Holder”) must be accompanied by a written representation from each such
Holder delivered to the Company, the Trustee and the Notes Collateral Agent, as applicable, that such Holder is not (or, in the case such Holder is DTC or its 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 the 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 Company with such other information as the Company may
reasonably request from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is
DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee and DTC shall be entitled to conclusively rely on such Position
Representation and Verification Covenant in delivering any direction to the Trustee and the Notes Collateral Agent, as applicable.
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If, following the delivery of a Noteholder Direction, but prior to acceleration of the
Notes, the Company 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 provides to the Trustee and the Notes Collateral Agent, as applicable,
an Officer’s Certificate stating that the Company has initiated litigation (“Litigation”) in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position
Representation, and seeking to invalidate any Default, Event of Default or acceleration (or notice thereof) 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 Default or Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on
such matter (a “Final Decision”). Once such Officer’s Certificate has been provided to the Trustee, the Trustee shall take no further action pursuant to the related Noteholder Direction until it has actual knowledge of a
Final Decision. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company provides to the Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that a Directing
Holder failed to satisfy its Verification Covenant (a “Verification Covenant Officer’s Certificate”), the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Default
or Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant, and the Trustee shall take no further action pursuant to the
related Noteholder Direction until the Company provides a subsequent Officer’s Certificate to the Trustee that such Verification Covenant has been satisfied (a “Covenant Satisfaction Officer’s Certificate”). The
Company shall promptly deliver a Covenant Satisfaction Officer’s Certificate following satisfaction by the applicable Directing Holder of its Verification Covenant. Any breach of the Position Representation shall result in such Holder’s
participation in such Noteholder Direction being disregarded; and, if, without the participation of such 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, with the effect that such Default or Event of Default shall be deemed never to have occurred, acceleration voided and neither the Trustee nor the Notes Collateral
Agent, as applicable, shall be deemed to have received such Noteholder Direction or any notice of such Default or Event of Default.
(b)
Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee and the Notes Collateral Agent, as applicable, during the pendency of an Event of Default as the result of a bankruptcy or
similar proceeding shall not require compliance with the foregoing paragraphs. For the avoidance of doubt, the Trustee and the Notes Collateral Agent, as applicable, shall be entitled to conclusively rely on any Noteholder Direction 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 Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise and shall have no liability for ceasing to
take any action, staying any remedy or otherwise failing
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to act in accordance with a Noteholder Direction during the pendency of Litigation or a Noteholder Direction after a Verification Covenant Officer’s Certificate has been provided to it
prior to the receipt of a Covenant Satisfaction Officer’s Certificate. Nether the Trustee nor the Notes Collateral Agent, as applicable, shall have any liability or responsibility to the Company, any Holder or any other Person in connection
with any Noteholder Direction or to determine whether or not any Holder has delivered a Position Representation or that such Position Representation conforms with this Indenture or any other Agreement.
(c) If a Default for a failure to report or failure to deliver a required certificate in connection with another default (the
“Initial Default”) occurs, then at the time such Initial Default is cured, such Default for a failure to report or failure to deliver a required certificate in connection with another default that resulted solely because of that
Initial Default shall also be cured without any further action.
(d) Any Default or Event of Default for the failure to comply with the
time periods prescribed in Section 3.10 hereof or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required by
such provision or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified in this Indenture. Any time period in this Indenture to cure any actual or alleged Default or Event of Default may
be extended or stayed by a court of competent jurisdiction to the extent such actual or alleged Default or Event of Default is the subject of litigation.
Section 6.2 Acceleration. If any Event of Default (other than an Event of Default described in clause (7) or (8) of
Section 6.1(a)) occurs and is continuing, the Trustee by written notice to the Company or the Holders of at least 30% in principal amount of the outstanding Notes by written notice to the Company and the Trustee may declare
the principal of and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest, will be due and payable immediately.
In the event of any Event of Default specified in clause (4) of Section 6.1(a), such Event of Default and all
consequences thereof shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose:
(1) (x) the Indebtedness that gave rise to such Event of Default shall have been discharged in full; or (y) the holders
thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (z) if the default that is the basis for such Event of Default has been cured; and
(2) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent
jurisdiction.
If an Event of Default described in clause (7) or (8) of Section 6.1(a) occurs and is
continuing, the principal of and accrued and unpaid interest, if any, on all of the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
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Section 6.3 Other Remedies. If an Event of Default occurs and is continuing,
subject to the terms of the applicable Intercreditor Agreements, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any, or interest, if any, 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 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. No remedy is exclusive of any other remedy. All available remedies are cumulative.
Section 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), an existing
Default or Event of Default and its consequences under this Indenture except (i) a Default or Event of Default in the payment of the principal of, or interest, on a Note or (ii) a Default or Event of Default in respect of a provision that
under Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind any acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any
judgment or decree of a court of competent jurisdiction, (2) all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, interest, if any, that has become due solely because of the acceleration,
(3) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid, (4) the Issuer has paid
the Trustee its compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances and (5) in the event of the cure or waiver of an Event of Default of the type described in clause (4) of
Section 6.1(a), the Trustee shall have received an Officer’s Certificate and an Opinion of Counsel stating that such Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any consequent right.
Section 6.5 Control by Majority. The Holders of a majority in aggregate principal amount of the outstanding Notes may direct the
time, method and place of conducting any proceeding for any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the Notes Collateral Agent. However, the Trustee and the Notes
Collateral Agent, as applicable, may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2, that the Trustee determines is unduly prejudicial to the rights of other
Holders or would involve the Trustee or the Notes Collateral Agent in personal liability (it being understood that the Trustee has no duty to determine if any directed action is prejudicial to any Holder); provided, however, that the Trustee or the
Notes Collateral Agent, as applicable, may take any other action deemed proper by the Trustee or the Notes Collateral Agent, as applicable, that is not inconsistent with such direction. Prior to taking any such action hereunder, each of the Trustee
and the Notes Collateral Agent shall be entitled to indemnification satisfactory to it against all fees, losses, liabilities and expenses (including attorney’s fees and expenses) caused by taking or not taking such action.
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Section 6.6 Limitation on Suits. Subject to Section 6.7, a Holder may not
pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee
written notice that an Event of Default is continuing;
(2) Holders of at least 30% in aggregate principal amount of the
outstanding Notes have requested in writing the Trustee to pursue the remedy;
(3) such Holders have offered in writing
and, if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt of the written request and the offer of
security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the outstanding Notes have not given
the Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it
being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the contractual right of any Holder to receive payment of interest on the Notes held by such Holder or to institute suit for the enforcement of any such payment on or with respect to such
Holder’s Notes shall not be impaired or affected without the consent of such Holder (and, for the avoidance of doubt, the amendment, supplement or modification in accordance with the terms of this Indenture of Articles III and IV and
Section 6.1(a)(3), (4), (5) and (6) and the related definitions shall be deemed not to impair the contractual right of any Holder to receive payments of principal of and interest on such
Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Note).
Section 6.8 Collection Suit by Trustee. If an Event of Default specified in clauses (1) or (2) of
Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.7.
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Section 6.9 Trustee May File Proofs of Claim. The Trustee may 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 and the Notes Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of each of
the Trustee and the Notes Collateral Agent and their respective agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer, its Subsidiaries or its or their respective creditors or properties and, unless
prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or
other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make 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 it for the compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their respective agents and counsel, and any other amounts due to the Trustee and the
Notes Collateral Agent under Section 7.7.
No provision of this Indenture 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, liquidation, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
(a) Subject to the Intercreditor Agreements, if the Trustee collects any money or property pursuant to this Article VI, it shall pay
out the money or property in the following order:
FIRST: to the Trustee and the Notes Collateral Agent, in each case, for amounts due to
it under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or 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 of, or premium, if any, and interest, respectively; and
THIRD: to the Issuer, or to the extent the Trustee collects any amount for any Guarantor, to such Guarantor.
(b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At
least 15 days before such record date, the Issuer shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
Section 6.11 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 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 6.11 does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 20.0% in outstanding aggregate principal amount of the Notes.
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ARTICLE VII
TRUSTEE
Section 7.1
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, and is actually known or notified in writing to a
Trust Officer, the Trustee shall exercise 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 same circumstances in the conduct of such
person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad
faith or willful misconduct 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, opinions or orders furnished to the Trustee and conforming to the
requirements of this Indenture or the Notes, as the case may be. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the requirements of this Indenture or the Notes, as the case may be (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.1(b);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) 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 6.5; and
(4) no provision of this Indenture or the Notes shall require the Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
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(d) Every provision of this Indenture that in any way relates to the Trustee is subject to
this Section 7.1 and Section 7.2.
(e) 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.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 7.1.
Section 7.2 Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
judgment, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document (whether in its original or facsimile form) reasonably 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. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such
reports or statements to determine compliance with covenants or other obligations of the Issuer.
(b) Before the Trustee acts or refrains
from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts and powers hereunder or perform any duties hereunder either directly or by or through its
attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel of its selection, and the advice or
opinion of counsel relating to this Indenture or the Notes shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder or under the Notes in good faith and in accordance
with the advice or opinion of such counsel.
(f) The Trustee shall not be deemed to have notice of any Default or Event of Default or
whether any entity or group of entities constitutes a Significant Subsidiary unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or of any such Significant
Subsidiary is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. Nothing herein shall require the Trustee to provide a notice to the Company in accordance with
Section 6.1(3), (4), (5) or (9) of this Indenture (or analogous provision set forth in the terms of any Notes) absent a direction from Holders of a majority in principal amount of the Notes then
outstanding (subject to the Trustee’s rights to be indemnified hereunder).
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(g) 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 to each agent, including without limitation, the Notes Collateral Agent, and each
custodian and other Person employed to act hereunder; provided that only the Trustee acting in its capacity as Trustee and not any other capacity shall be subject to any prudent person standard.
(h) Neither the Trustee nor the Notes Collateral Agent shall be under any obligation to exercise any of the rights or powers vested in it by
this Indenture or the Notes at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered and, if requested, provided to the Trustee and the Notes Collateral Agent, as
applicable, security or indemnity satisfactory to the Trustee and the Notes Collateral Agent, as applicable, against the costs, expenses and liabilities which may be incurred therein or thereby.
(i) Neither the Trustee nor the Notes Collateral Agent shall be deemed to have knowledge of any fact or matter unless such fact or matter is
actually known to a Trust Officer of the Trustee or the Notes Collateral Agent, as applicable.
(j) Whenever in the administration of this
Indenture or the Notes the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder or thereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of negligence or willful misconduct on its part, request and conclusively rely upon an Officer’s Certificate.
(k)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or 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,
during business hours and upon reasonable notice, the books, records and premises of the Issuer and the 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.
(l) The Trustee shall not be required to give any bond or surety in respect of
the performance of its powers and duties hereunder.
(m) 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 or the Notes, 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.
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(n) In no event shall the Trustee be liable to any Person for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(o) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if
signed by one Officer of the Issuer.
(p) In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or
confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other
communications or information on behalf of the party purporting to send such electronic transmission and may conclusively rely on, and comply with, such instructions, directions, reports, notices or other communications or other information
reasonably believed by it to be genuine and to have been sent by the proper Person; and the Trustee shall not, in the absence of negligence or willful misconduct on its part, have any liability for any losses, liabilities, costs or expenses incurred
or sustained by any party as a result of such reliance in good faith upon, or compliance in good faith with, such instructions, directions, reports, notices or other communications or information. Each party agrees to assume all risks arising out of
the use of electronic methods by such party to submit instructions, directions, reports, notices or other communications or information to the Trustee by such party, including without limitation the risk of the Trustee acting on unauthorized
instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(q) The
permissive rights of the Trustee enumerated herein shall not be construed as duties and, with respect to such permissive rights, the Trustee shall not be answerable for other than its gross negligence or willful misconduct.
(r) The Trustee is not responsible for monitoring the performance of other persons or for the failure of others to perform their duties.
(s) Any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request or authority or consent
of any person in accordance with this Indenture who, at the time of making such request or giving such authority or consent, is the holder of any Note shall, to the extent provided in this Indenture, be conclusive and binding upon future holders of
Notes, and upon Notes executed and delivered in exchange therefor or in place thereof.
(t) Notwithstanding anything to the contrary set
forth herein, in no event shall the Trustee or the Paying Agent be liable for interest on any money received by it (including, but not limited to, any negative interest) except as the Trustee or the Paying Agent may otherwise agree in writing with
the Company.
Section 7.3 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, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Section 7.10. In addition, the Trustee shall be permitted to engage in transactions with the Issuer
and its Affiliates and Subsidiaries.
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Section 7.4 Trustee’s Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of the Note Documents, shall not be accountable for the Issuer’s use of the proceeds from the sale of the Notes, shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee or any money paid to the Issuer pursuant to the terms of this Indenture and shall not be responsible for any statement of the Issuer in the Note Documents or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5
Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall send electronically or by first class mail to each Holder at the address set forth in the
Notes Register notice of the Default or Event of Default within 60 days after it is actually known to a Trust Officer. Except in the case of a Default or Event of Default in payment of principal of or interest, if any, on any Note (including
payments pursuant to the optional redemption or required repurchase provisions of such Note), the Trustee may withhold the notice if and so long it in good faith determines that withholding the notice is in the interests of Holders.
Section 7.6 Monies to Be Held in Trust. All monies received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received. The Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
Section 7.7 Compensation and Indemnity. The Issuer and the Guarantors, jointly and severally, shall pay to the Trustee and the
Notes Collateral Agent from time to time compensation for its services hereunder and under the Notes as the Issuer and the Trustee and the Notes Collateral Agent shall from time to time agree in writing. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer and the Guarantors, jointly and severally, shall reimburse each of the Trustee and the Notes Collateral Agent upon request for all reasonable out-of-pocket expenses incurred or made by it, including, but not limited to, costs of collection, costs of preparing reports, certificates and other documents, costs of
preparation and mailing of notices to Holders. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the agents, counsel, accountants and experts of the Trustee and the Notes Collateral Agent. The Issuer
and the Guarantors, jointly and severally, shall indemnify the Trustee, the Notes Collateral Agent, their respective directors, officers, employees and agents and hold each of them harmless against any and all loss, liability, damages, claims or
expense, including taxes (other than taxes based upon the income of the Trustee or the Notes Collateral Agent) (including reasonable attorneys’ and agents’ fees and expenses) incurred by it without willful misconduct or gross negligence,
as determined by a final non-appealable order of a court of competent jurisdiction, on its part in connection with the administration of this trust and the performance of its duties or exercise of its rights
hereunder and under the Notes and other Note Documents, including the costs and expenses of enforcing this Indenture (including this Section 7.7) and the Notes and the other Note Documents and of defending itself against
any claims (whether asserted by any Holder, the Issuer or otherwise). The Trustee and the Notes Collateral Agent, as applicable, shall notify the Issuer promptly of any claim for which it may seek indemnity
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of which it has received written notice. Failure by the Trustee or the Notes Collateral Agent, as applicable, to so notify the Issuer shall not relieve the Issuer of its obligations hereunder.
The Issuer shall defend the claim and the Trustee and the Notes Collateral Agent, as applicable, shall provide reasonable cooperation at the Issuer’s expense in the defense. The Trustee and the Notes Collateral Agent may have separate counsel
and the Issuer shall pay the fees and expenses of such counsel; provided that the Issuer shall not be required to pay the fees and expenses of such separate counsel if it assumes the Trustee’s and the Notes Collateral Agent’s
defense, and, in the reasonable judgment of outside counsel to the Trustee or the Notes Collateral Agent, as applicable, there is no conflict of interest between the Issuer and the Trustee and the Notes Collateral Agent in connection with such
defense; provided further that, the Company shall be required to pay the reasonable fees and expenses of such counsel in evaluating such conflict.
To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the
Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. The
Trustee’s respective right to receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or Indebtedness of the Issuer.
The Issuer’s payment obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture,
payment of the Notes and any resignation or removal of the Trustee under Section 7.8 or the Notes Collateral Agent under Section 12.7. Without prejudice to any other rights available to the Trustee
and the Notes Collateral Agent under applicable law, when the Trustee or the Notes Collateral Agent incurs fees, expenses or renders services after the occurrence of a Default specified in clause (7) or clause (8) of
Section 6.1(a), the fees and expenses (including the reasonable fees and expenses of its counsel) are intended to constitute administrative expenses for purposes of priority under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may resign at any time by so notifying the Issuer in writing not less than 30 days
prior to the effective date of such resignation. The Holders of a majority in aggregate principal amount of the Notes may remove the Trustee by so notifying the removed Trustee in writing not less than 30 days prior to the effective date of such
removal and may appoint a successor Trustee with the Issuer’s written consent, which consent will not be unreasonably withheld. The Issuer shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in
principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee as described in the preceding paragraph, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuer shall promptly appoint 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 mail a notice of its succession to Holders. The retiring Trustee shall, at the expense of the Issuer, promptly transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of at least 10.0% in aggregate principal amount of the Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder, who has been a bona fide
holder of a Note for at least six months, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under
Section 7.7 shall continue for the benefit of the retiring Trustee with respect to expense and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers, and duties under this
Indenture prior to such replacement. The predecessor Trustee shall have no liability for any action or inaction of any successor Trustee.
Section 7.9 Successor Trustee or Notes Collateral Agent by Merger. If the Trustee or the Notes Collateral Agent, as applicable,
consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall
be the successor Trustee or successor Notes Collateral Agent, as applicable.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Trustee; provided that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or
successors by merger, consolidation or conversion.
Section 7.10 Eligibility; Disqualification. This Indenture shall always
have a Trustee. The Trustee shall have a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition.
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Section 7.11 Notes Collateral Documents. By their acceptance of the Notes, each
Holder is deemed to accept the terms of, agrees to be bound by and authorize and direct each of the Trustee and the Notes Collateral Agent, as applicable, to enter into and perform its respective obligations under, the Notes Collateral Documents.
By their acceptance of the Notes, the Holders and the other Notes Secured Parties authorize and instruct the Trustee and the Notes
Collateral Agent, as applicable, to, without any further consent of any Holder or any other Second Lien Secured Parties, (a) join or enter into (or acknowledge and consent to) the Junior Lien Intercreditor Agreement, the Second Lien
Intercreditor Agreement or any other intercreditor agreement (which shall also include any replacement intercreditor agreement thereof entered into in accordance with the terms hereof) that provides the Notes Obligations with junior, pari passu or
senior Lien and/or payment priority, in each case, that is permitted or not prohibited under this Indenture (including with respect to priority) and to subject the Liens on the Collateral securing the Notes Obligations to the provisions thereof
(each, an “Other Intercreditor Agreement”) and (b) enter into any amendments, restatements, amendments and restatements, supplements, or other modifications, in order to provide for the incurrence of any First Lien
Obligations, Junior Lien Obligations or Second Lien Obligations, which shall be in a form that the Company has determined in good faith is reasonably customary for intercreditor agreements governing the relationship between senior and junior
priority. By their acceptance of the Notes, the Holders and the other Notes Secured Parties irrevocably agree that (x) the Trustee and the Notes Collateral Agent may rely exclusively on an Officer’s Certificate as to whether any such
intercreditor agreement that provides the Notes Obligations with junior, pari passu or senior Lien and/or payment priority is permitted under this Indenture and the other Note Documents and (y) any Intercreditor Agreement entered into by the
Trustee and the Notes Collateral Agent, as applicable, shall be binding on the Notes Secured Parties, and each Holder and each other Notes Secured Parties by their acceptance of the Notes agrees that it will take no actions contrary to the
provisions of the Junior Lien Intercreditor Agreement and, if entered into and if applicable, the Second Lien Intercreditor Agreement or any Other Intercreditor Agreement.
It is hereby expressly acknowledged and agreed that, in entering into any Notes Collateral Document, the Trustee and the Notes Collateral
Agent are (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the
sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Notes Collateral Documents, the Trustee and the Notes Collateral Agent each shall have all of the
rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
Section 7.12 Trustee’s Application for Instruction from the Issuer. Any application by the Trustee for written
instructions from the Issuer may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three
(3) Business Days after the date any Officer of the Issuer actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
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ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance; Defeasance. The Issuer may, at its option and at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII.
Section 8.2 Legal Defeasance and Discharge. Upon the Issuer’s exercise under Section 8.1 hereof of
the option applicable to this Section 8.2, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees) and have Liens, if any, on the Collateral securing the Notes released, on the date the conditions set forth below are satisfied (hereinafter,
“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note
Guarantees), which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all of their other obligations under the Note Documents (and the Trustee, on written demand of and at the expense of the Issuer, shall execute such instruments reasonably requested by the Issuer acknowledging the same) and to have cured
all then existing Events of Default, except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of Notes issued under this Indenture to receive payments in respect of the principal of, premium, if
any, and interest, if any, on the Notes when such payments are due solely out of the trust referred to in Section 8.4 hereof;
(2) the Issuer’s obligations with respect to the Notes under Article II concerning issuing temporary Notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and Section 3.12 hereof concerning the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties, indemnities and immunities of the Trustee and Notes Collateral Agent and the
Issuer’s or Guarantors’ obligations in connection therewith; and
(4) this Article VIII with respect to
provisions relating to Legal Defeasance.
Section 8.3 Covenant Defeasance. Upon the Issuer’s exercise under
Section 8.1 hereof of the option applicable to this Section 8.3, the Issuer and each of the Guarantors will, subject to the satisfaction of the conditions set forth in
Section 8.4 hereof, be released from each of their obligations under the covenants contained in Section 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9,
3.10, 3.11, 3.16, 3.19, 3.20, 3.21 and Section 4.1 (except Section 4.1(a)(1) and (a)(2)) hereof and have Liens, if any, on the Collateral securing
the Notes released, with respect to the outstanding Notes on and
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after the date the conditions set forth in Section 8.4 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed
“outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and 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 6.1(a) hereof, but, except as specified above, the remainder of this Indenture and such Notes
and Guarantees will be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(a)(3) (other than with respect to Section 4.1(a)(1) and (a)(2)), 6.1(a)4), 6.1(a)(5), 6.1(a)6),
6.1(a)7) (with respect only to a Guarantor that is a Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary), and 6.1(a)(8) (with respect only to a Guarantor that is a
Significant Subsidiary or any group of Guarantors that taken together would constitute a Significant Subsidiary) hereof shall not constitute Events of Default.
Section 8.4 Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.2 or 8.3 hereof:
(1) the Issuer must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of and premium, if any, interest, due on the Notes issued under this Indenture on the stated maturity date or on the applicable Redemption Date, as the case may be, 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 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 on or prior to the Redemption Date; provided that the Trustee shall have no liability whatsoever in the event that such Applicable Premium Deficit is not in fact paid after any legal defeasance or
covenant defeasance. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least two (2) Business Days prior to the Redemption Date that confirms that such Applicable Premium Deficit
shall be applied toward such redemption;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that, subject to customary assumptions and exclusions;
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(A) the Issuer has received from, or there has been published by, the
United States Internal Revenue Service a ruling; or
(B) since the issuance of such Notes, 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, in their capacity as 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;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United
States stating 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;
(4) no Default or Event of Default (other than that resulting from borrowing funds to be applied to make such deposit and the
granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Credit Facilities or any other 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;
(6) [reserved];
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate to the effect that the deposit was not made
by the Issuer with the intent of defeating, hindering, delaying, defrauding or preferring any creditors of the Issuer or any Guarantor; and
(8) 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 to the effect 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 8.5 Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions. Subject to
Section 8.6 hereof, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect of the outstanding Notes will 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 the Issuer 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.
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The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.4 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.
Notwithstanding anything in this Article VIII to the contrary, the
Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or U.S. Government Obligations held by it as provided in Section 8.4 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 8.4(1) 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 8.6
Repayment to the Issuer. 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 or interest on, any Note and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the Issuer on its written request unless an abandoned property law designates another Person or (if then held by the Issuer) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to look only to the Issuer for payment thereof unless an abandoned property law designates another Person, 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, will thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Issuer cause to be published
once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 8.7 Reinstatement. If the Trustee or
Paying Agent is unable to apply any money or U.S. dollars or U.S. Government Obligations in accordance with Section 8.2 or 8.3 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 will be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3
hereof, as the case may be; provided, however, that, if the Issuer make any payment of principal of, premium, or interest on, any Note following the reinstatement of its obligations, the Issuer will be subrogated to the rights of the
Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS
Section 9.1
Without Consent of Holders. Notwithstanding Section 9.2 of this Indenture, the Issuer, any Guarantor (with respect to its Note Guarantee or this Indenture), the Trustee and the Notes Collateral Agent, as applicable,
may amend, supplement or modify the Note Documents, and the Company may direct the Trustee and the Notes Collateral Agent, as applicable, to enter into an amendment to the Note Documents, without the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, defect, error or inconsistency, conform any provision to any provision in the
Exchange Offering Memorandum or reduce the minimum denomination of the Notes;
(2) to provide for the assumption by a
successor Person of the obligations of the Issuer or a Guarantor under any Note Document or to comply with Section 4.1;
(3) to provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of this
Indenture relating to the form of the Notes (including related definitions);
(4) to add to or modify the covenants or
provide for a Note Guarantee for the benefit of the Holders or to surrender any right or power conferred upon the Issuer or any Restricted Subsidiary;
(5) to make any change (including changing the CUSIP or other identifying number on any Notes) that would provide any
additional rights or benefits to the Holders or that does not adversely affect the rights of any Holder in any material respect;
(6) at the Company’s election, to comply with any requirement of the SEC in connection with the qualification of this
Indenture under the Trust Indenture Act, if such qualification is required;
(7) to make such provisions as necessary (as
determined in good faith by the Company) for the issuance of Additional Notes in accordance with the terms of this Indenture;
(8) to provide for any Restricted Subsidiary to provide a Note Guarantee in accordance with
Section 3.7, to add Guarantees with respect to the Notes, to add collateral to or for the benefit of the Notes, or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with
respect to or securing the Notes when such release, termination, discharge or retaking is provided for under this Indenture;
(9) to evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee or successor Paying
Agent thereunder pursuant to the requirements hereof or to provide for the accession by the Trustee to any Note Document;
(10) [reserved];
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(11) to add an obligor or a Guarantor under this Indenture;
(12) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as not
prohibited by this Indenture, including, without limitation, to facilitate the issuance and administration of Notes; provided, however, that (i) compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the rights of Holders to transfer the Notes in any material respect;
(13) to comply with the rules and procedures of any applicable securities depositary;
(14) to make any amendment to the provisions of this Indenture, the Guarantees and/or the Notes to eliminate the effect of any
Accounting Change or in the application thereof as described in the last paragraph of the definition of “GAAP”;
(15) to mortgage, pledge, hypothecate or grant any other Lien in favor of the Trustee or the Notes Collateral Agent for the
benefit of the Holders, as additional security for the payment and performance of all or any portion of the Notes Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien
is required to be granted to or for the benefit of the Trustee or the Notes Collateral Agent pursuant to this Indenture, any of the Notes Collateral Documents or otherwise;
(16) to add Additional First Lien Secured Parties, Additional Second Lien Secured Parties or Additional Junior Lien Secured
Parties to any Notes Collateral Document;
(17) to enter into any Intercreditor Agreement, any joinder thereto or any
amendment, restatement, amendment and restatement, supplement or other modification permitted pursuant to Section 7.11;
(18) in the case of any Notes Collateral Document, include therein any legend required to be set forth therein pursuant to any
Intercreditor Agreement or modify any such legend as required by any Intercreditor Agreement;
(19) provide for the
succession of any parties to any Notes Collateral Document (and other amendments that are administrative or ministerial in nature) in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement,
supplementing or other modification from time to time of the Credit Agreements or any other agreement that is not prohibited by this Indenture; and
(20) to release Collateral from the Lien securing the Notes Obligations when expressly permitted or required by this Indenture,
any Notes Collateral Document or any Intercreditor Agreement.
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Subject to Section 9.2, upon the request of the Issuer and upon
receipt by the Trustee and the Notes Collateral Agent, as applicable, of the documents described in Sections 9.6 and 13.2 hereof, the Trustee and the Notes Collateral Agent, as applicable, will join with the Issuer and the Guarantors
in the execution of such amendment or supplement unless such amendment or supplement affects the Trustee’s or the Notes Collateral Agent’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the
Trustee or the Notes Collateral Agent, as applicable, may in its discretion, but will not be obligated to, enter into such amendment or supplement.
Section 9.2 With Consent of Holders. Except as provided below in this Section 9.2, the Issuer, the
Guarantors, the Trustee and the Notes Collateral Agent, if applicable, may amend or supplement the Note Documents with the consent of the Holders of at least a majority in principal amount of all the outstanding Notes issued under this Indenture,
including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, and any 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, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes and the Guarantees may be waived with the consent of the
Holders of at least a majority in principal amount of all the outstanding Notes issued under this Indenture (including consents obtained in connection with a purchase of or tender offer or exchange offer for Notes).
Section 2.12 hereof and Section 13.4 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.2.
Upon the request of the Issuer, and upon delivery to the Trustee or the Notes Collateral Agent, as applicable, of evidence of the consent of
the Holders of Notes as aforesaid, and upon receipt by the Trustee or the Notes Collateral Agent, as applicable, of the documents described in Section 9.6 and 13.2 hereof, the Trustee or the Notes Collateral Agent, as
applicable, will join with the Issuer and the Guarantors in the execution of such amendment or supplement unless such amendment or supplement affects the Trustee’s or the Notes Collateral Agent’s, as applicable, own rights, duties,
liabilities or immunities under this Indenture or otherwise, in which case the Trustee or the Notes Collateral Agent, as applicable, may in its discretion, but will not be obligated to, enter into such amendment or supplement.
Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not, with respect to any Notes issued thereunder
and held by a nonconsenting Holder:
(1) reduce, or have the effect of reducing, the percentage of the aggregate principal
amount of Notes whose Holders must consent to an amendment, including, for the avoidance of doubt, the incurrence of Obligations in contemplation of or for a primary purpose of influencing any voting threshold for purposes of any amendment,
modification or waiver of any Note Document that is to occur simultaneously or substantially simultaneously with the incurrence of such Obligations;
(2) reduce the stated rate of or extend the stated time for payment of interest on any such Note (other than provisions
relating to Section 3.5 and Section 3.9);
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(3) reduce the principal of or extend the Stated Maturity of any such Note
(other than provisions relating to Section 3.5 and Section 3.9);
(4)
reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed, in each case as set forth in Section 5.7;
(5) make any such Note payable in currency other than that stated in such Note;
(6) impair the contractual right of any Holder to receive payment of principal of and interest on such Holder’s Notes on
or after the due dates therefor or to institute suit for the enforcement of any such payment on or with respect to such Holder’s Notes (and, for the avoidance of doubt, the amendment, supplement or modification in accordance with the terms of
this Indenture of Sections 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.18, 3.22, 3.23, 3.24 and clauses (3), (4), (5) and (6) of
Section 6.1(a) and the related definitions shall be deemed not to impair the contractual right of any Holder to receive payment of principal of and interest on such Holder’s Notes on or after the due dates therefor or
to institute suit for the enforcement of any such payment on or with respect to such Holder’s Note);
(7) waive a
Default or Event of Default with respect to the nonpayment of principal, premium or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of such Notes and a waiver
of the payment default that resulted from such acceleration); or
(8) make any change in the amendment or waiver provisions
which require the Holders’ consent described in this sentence.
Notwithstanding the foregoing, without the consent of the Holders of
at least 66-2/3% in aggregate principal amount of the Notes then outstanding, no amendment or waiver may (A) make any change in any Notes Collateral Document or the provisions in this Indenture dealing
with Collateral or application of trust proceeds of the Collateral with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Obligations in respect of the Notes, other than as provided under the terms of
this Indenture or the Notes Collateral Documents, (B) except as permitted by this Indenture, modify the Note Guarantees of any Significant Subsidiary in any manner materially adverse to the Holders, (C) subordinate the Liens securing the
Obligations in respect of the Notes in all or substantially all of the Collateral to any Indebtedness for borrowed money, or subordinate the Obligations in respect of the Notes in right of payment to any Indebtedness for borrowed money, except, in
either case, (i) Indebtedness that is expressly permitted to rank senior in Lien or payment priority, as applicable, to the Obligations in respect of the Notes as of the Issue Date, or (ii) either (a) pursuant to a transaction providing
for the incurrence of Indebtedness for borrowed money that ranks senior in Lien or payment priority to all obligations under this Indenture in which participation is offered to all affected Holders (or all applicable holders of First Lien
Obligations) on a pro rata basis (together with all holders of Obligations with Pari Passu Lien Priority) on the same terms and conditions as offered to all other providers of such Indebtedness (other than bona fide backstop fees and reimbursement
of counsel fees and other expenses in connection with the negotiation of the terms of such transaction) or (b) in connection with a “debtor in possession” financing (or any similar financing arrangement in an insolvency proceeding
in a non-U.S. jurisdiction) or use of cash collateral; (D) amend, modify or waive Section 3.22 or the definition of “Liability Management Transaction”, (E) amend,
modify or waive the provisions of Section 3.18 or (F) amend, modify or waive the proviso to Section 10.2(b)(5).
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It shall not be necessary for the consent of the Holders under this Indenture to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder of the Notes given in
connection with a tender or exchange of such Holder’s Notes will not be rendered invalid by such tender or exchange.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers. 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 or waiver is
not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent or waiver as to such Holder’s Note or portion of 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 give their consent or
take any other action described in this Section 9.4 or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, 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.
Section 9.5 Notation on or Exchange of Notes. The Issuer 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 Issuer Order, authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
Section 9.6 Trustee and the Notes Collateral Agent to Sign Amendments. The Trustee and the Notes Collateral Agent shall sign
any amendment or supplement, security documents or intercreditor agreement authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee and the
Notes Collateral Agent, as applicable. In executing any amendment or supplement, security documents or intercreditor agreement, the Trustee and the Notes Collateral Agent will be entitled to receive and (subject to Sections 7.1 and 7.2
hereof) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.2 hereof, an Officer’s Certificate and an
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Opinion of Counsel stating that the execution of such amendment or supplement, security documents or intercreditor agreement is authorized or permitted by this Indenture and any applicable Note
Documents and is, in respect of such Opinion of Counsel, valid, binding and enforceable against the Issuer or any Guarantor, as the case may be, in accordance with its terms. Notwithstanding the foregoing, no Opinion of Counsel shall be required in
connection with the execution of a supplemental indenture that is substantially in the form attached hereto as Exhibit B.
ARTICLE X
GUARANTEE
Section 10.1
Guarantee. Subject to the provisions of this Article X, each Guarantor that executes this Indenture or a supplemental indenture hereto will fully, unconditionally and irrevocably guarantee, as primary obligor and not merely as surety,
jointly and severally with each other Guarantor, to each Holder, the Trustee and the Notes Collateral Agent the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if
any, and interest on the Notes and all other obligations and liabilities of the Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.7) (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor agrees that the Guaranteed Obligations will rank equally in right of payment with other Indebtedness of such Guarantor, except to the
extent such other Indebtedness is subordinate to the Guaranteed Obligations, in which case the obligations of the Guarantors under the Note Guarantees will rank senior in right of payment to such other Indebtedness.
To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture (or
a supplemental indenture that is substantially in the form attached hereto as Exhibit B) shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and
effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee.
If an Officer whose signature is on this
Indenture (or a supplemental indenture that is substantially in the form attached hereto as Exhibit B) no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
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Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of
each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the
Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;
(d) the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any
default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk
of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its
Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Guarantee in compliance with Section 10.2, Article VIII or Article
XI. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any of the
Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Issuer to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and
(ii) accrued and unpaid interest on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of
the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purposes of this Note Guarantee.
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Each Guarantor also agrees to pay any and all fees, costs and expenses (including
attorneys’ fees and expenses) incurred by the Trustee, the Notes Collateral Agent or the Holders in enforcing any rights under this Section 10.1.
Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor hereunder will be limited to
the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal, foreign, state or provincial law and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.
(b) Any Note Guarantee of a Guarantor shall be automatically and unconditionally released and discharged upon:
(1) a sale, exchange, transfer or other disposition (including by way of merger, amalgamation, consolidation, dividend
distribution or otherwise) of the Capital Stock of such Guarantor, in each case as a result of which such Guarantor ceases to be a Restricted Subsidiary, or the sale, exchange, transfer or other disposition, of all or substantially all of the assets
of the Guarantor, to a Person other than to the Company or a Restricted Subsidiary, in each case to the extent not otherwise prohibited by this Indenture;
(2) the designation in accordance with this Indenture of the Guarantor as an Unrestricted Subsidiary or the occurrence of any
event after which the Guarantor is no longer a Restricted Subsidiary;
(3) defeasance or discharge of the Notes pursuant to
Article VIII or Article XI;
(4) [reserved];
(5) such Guarantor becoming an Excluded Subsidiary as a result of a transaction or designation permitted hereunder;
provided that no such release shall occur if such Guarantor becomes an Excluded Subsidiary solely under (x) clause (viii) of the definition of “Excluded Subsidiary” unless in connection with a bona fide Disposition of
the Capital Stock of such Guarantor to a Person that is not a Note Party or an Affiliate of a Note Party that is permitted hereunder, or (y) clause (xi) of the definition of “Excluded Subsidiary”;
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(6) upon the merger, amalgamation or consolidation of any Guarantor with and
into the Company or another Guarantor or upon the liquidation of such Guarantor, in each case, in compliance with the applicable provisions of this Indenture;
(7) upon the achievement of Investment Grade Status by the Notes; provided that such Note Guarantee shall be reinstated
upon the Reversion Date;
(8) in accordance with the applicable Intercreditor Agreements;
(9) upon the release of such Note Guarantee under the First Lien Notes Indenture; or
(10) as described under Article IX.
If the Trustee or Notes Collateral Agent is asked to acknowledge such release or take any other action in connection with such release, the
Trustee or the Notes Collateral Agent, as applicable, shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel, each stating that all covenants and conditions precedent contained in this Indenture and any applicable Note
Document to such release and the requested action have been complied with.
Section 10.3 Right of Contribution. Each Guarantor
hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share of any payment made on the obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive contribution from and
against the Issuer or any other Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Guarantor to the
Trustee, the Notes Collateral Agent and the Holders and each Guarantor shall remain liable to the Trustee, the Notes Collateral Agent and the Holders for the full amount guaranteed by such Guarantor hereunder.
Section 10.4 No Subrogation. Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be
entitled to be subrogated to any of the rights of the Trustee, the Notes Collateral Agent or any Holder against the Issuer or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee, the Notes Collateral
Agent or any Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Trustee, the Notes Collateral Agent and the Holders by the Issuer on account of the Guaranteed Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any
time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee, the Notes Collateral Agent and the Holders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obligations.
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ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1 Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Notes
issued hereunder and the Liens, if any, on the Collateral securing the Notes will be released, when:
(a) either:
(1) all Notes that have been authenticated and delivered, except lost, stolen or destroyed Notes that 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
(2) all such Notes not theretofore delivered to the Trustee for cancellation (i) have become due and payable by reason of
the making of a notice of redemption or otherwise or (ii) will become due and payable within one year at their Stated Maturity or (iii) 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;
(b) the Issuer has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness on such Notes not previously delivered to the Trustee for cancellation, for principal, premium, if any, and interest to the date of deposit (in the case of Notes that have become
due and payable), or to the Stated Maturity or Redemption Date, as the case may be; 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 equal to the Applicable Premium calculated as of the date of the notice of redemption, as calculated by the Company or on behalf of the Company by such Person as the Company shall designate,
with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the Redemption Date (provided that the Trustee shall have no liability whatsoever in the event that such Applicable Premium Deficit is not in fact paid
after any satisfaction and discharge), and any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee at least two (2) Business Days prior to the Redemption Date that confirms that such
Applicable Premium Deficit shall be applied toward such redemption;
(c) no Default or Event of Default (other than that resulting from
borrowing funds to be applied to make such deposit and the granting of Liens in connection therewith) with respect to this Indenture or the Notes issued hereunder shall have occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under the Credit Facilities or any other 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;
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(d) the Issuer has paid or caused to be paid all sums payable by the Issuer under this
Indenture; and
(e) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money in U.S. dollars toward
the payment of such Notes issued hereunder at maturity or the Redemption Date, as the case may be.
In addition, the Issuer shall deliver
an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all covenants and conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the Issuer’s obligations to the Trustee and the Notes Collateral Agent
in Section 7.7 hereof and, if money in U.S. dollars has been deposited with the Trustee pursuant to clause (a)(1) of this Section 11.1, the provisions of Sections 11.2 and 8.6 hereof
will survive.
Section 11.2 Application of Trust Money. Subject to the provisions of Section 8.6
hereof, all money in U.S. dollars or U.S. Government Obligations deposited with the Trustee pursuant to Section 11.1 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 Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium) and interest for whose payment
such money in U.S. dollars or U.S. Government Obligations has been deposited with the Trustee; but such money in U.S. dollars or U.S. Government Obligations 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 Obligations in accordance with
Section 11.1 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 11.1 hereof; provided that if the Issuer have made any payment of
principal of, premium or interest on, any Notes because of 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 or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE XII
SECURITY
Section 12.1
Notes Collateral Documents.
(a) On and from the Issue Date, the due and punctual payment of the principal of, premium, if any, and
interest on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes
and payment and performance of all other Obligations of the Company and the Guarantors to the Holders, the Trustee or the Notes Collateral Agent under this Indenture, the Notes, the Note Guarantees, and the Notes Collateral Documents, according to
the terms hereunder or thereunder, shall be secured as provided in the Notes Collateral Documents.
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(b) On or following the Issue Date and subject to the applicable Intercreditor Agreements,
the Issuer and the Guarantors shall promptly execute, file or cause the filing of any and all documents, financing statements (including continuation statements and amendments to financing statements), agreements and instruments, and take all
further action that may be required under applicable law, or that the Notes Collateral Agent may reasonably request, in order to grant, preserve, maintain, protect and perfect (or continue the perfection of) the validity and priority of the security
interests created or intended to be created by the Notes Collateral Documents in the Collateral (including, for the avoidance of doubt, correcting any material defect or error that may be discovered in the execution, acknowledgement, filing or
recordation of any Notes Collateral Document or other document or instrument relating to any Collateral), all at the expense of the Issuer.
(c) The security interests in the Collateral securing the Notes will not be required to be in place on the Issue Date and will not be
perfected on such date, but will be required to be put in place no later than 60 days after the Issue Date or such later date as the Revolving Credit Agreement Collateral Agent may agree in its reasonable discretion;.
(d) Notwithstanding the foregoing or anything in this Indenture or any other Note Document to the contrary:
(1) Liens required to be granted from time to time shall be subject to exceptions and limitations set forth in the Notes
Collateral Documents;
(2) no deposit account control agreement, securities account control agreement or other control
agreements or control arrangements shall be required with respect to any deposit account, securities account or other asset specifically requiring perfection through control agreements;
(3) in the event any Guarantor is added that is organized in a jurisdiction other than the U.S., such Guarantor shall grant a
perfected lien on substantially all of its assets (other than Excluded Property) pursuant to arrangements reasonably agreed between the Revolving Credit Agreement Collateral Agent and the Company subject to customary limitations in such jurisdiction
to be reasonably agreed to between the Revolving Credit Agreement Collateral Agent and the Company; provided that, other than as provided in the immediately foregoing, no actions in any jurisdiction other than the U.S. or that are necessary to
comply with the laws of any jurisdiction other than the United States of America shall be required in order to create any security interests in assets located, titled, registered or filed outside of the United States of America or to perfect such
security interests (it being understood that other than as provided under this clause (C), there shall be no security agreements, pledge agreements, or share charge (or mortgage) agreements governed under the laws of any jurisdiction other than the
United States of America);
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(4) general statutory limitations, financial assistance, corporate benefit,
capital maintenance rules, fraudulent preference, “thin capitalization” rules, retention of title claims and similar principle may limit the ability of a Foreign Subsidiary to provide a Guarantee or Collateral or may require that the
Guarantee or Collateral be limited by an amount or otherwise, in each case as reasonably determined by the Company in consultation with the Revolving Credit Agreement Collateral Agent;
(5) no stock certificates of Immaterial Subsidiaries shall be required to be delivered to the Collateral Agent; and
(6) no action shall be required with respect to creation or perfection of security interests with respect to such any fee-owned or leasehold interests, including to enter into mortgages or deeds of trust or to obtain landlord waivers, estoppels or collateral access letters.
Section 12.2 Release of Collateral.
The Company and the Guarantors will be entitled to the automatic and immediate release of property and other assets constituting Collateral
from the Liens securing the Notes and the Notes Obligations under any one or more of the following circumstances:
(1) to
enable the Company and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such
property or assets (to a Person that is not the Company or a Guarantor) to the extent consummated in accordance with, or not prohibited by, Section 3.5 hereof;
(2) in the case any Collateral becomes Excluded Property;
(3) in the case of a Guarantor that is released from its Note Guarantee pursuant to the terms of this Indenture, the release of
the property and assets of such Guarantor;
(4) upon the achievement of Investment Grade Status;
(5) if all other liens on such Collateral securing First Lien Obligations are released or will be released simultaneously
therewith (other than any release by, or as a result of, payment in full and irrevocable termination of such First Lien Obligations);
(6) in accordance with Article IX hereof;
(7) upon the release of such property or assets under the First Lien Notes Indenture; or
(8) in accordance with the terms of the Intercreditor Agreements.
The Liens on the Collateral securing the Notes and the related Note Guarantees also will be released automatically and without further action
by the Notes Collateral Agent, the Trustee or the Holders (i) upon payment in full of the principal of, together with accrued and unpaid interest on, the Notes and all other Obligations under this Indenture, the related Note Guarantees and the
Notes Collateral Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid, or (ii) upon a legal defeasance or covenant defeasance pursuant to Article VIII or a
discharge pursuant to Article XI.
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Notwithstanding clause (4) above, if, after achievement of Investment Grade
Status, the Notes cease to have such Investment Grade Status, the Company and the Guarantors shall take all actions reasonably necessary to provide to the Notes Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the
Notes valid, perfected, second priority security interests (subject to Permitted Liens) in the Collateral as soon as reasonably practicable, but in any event within 60 days after such Reversion Date (or such later date as the Revolving Credit
Agreement Collateral Agent may agree in its reasonable discretion).
With respect to any release or subordination of Collateral, upon
receipt of an Officer’s Certificate and Opinion of Counsel stating that all covenants and conditions precedent under this Indenture and the Notes Collateral Documents, as applicable, to such release or subordination have been met and that it
is permitted for the Trustee or the Notes Collateral Agent, as applicable, to execute and deliver the documents requested by the Company in connection with such release and any necessary or proper instruments of termination, satisfaction or release
prepared by the Company, the Trustee and the Notes Collateral Agent shall execute, deliver or acknowledge (at the Company’s expense) any instruments or releases to evidence the release of any Guarantees and Collateral permitted to be released
pursuant to this Indenture and the Notes Collateral Documents, as applicable, and shall do or cause to be done (at the Company’s expense) all acts reasonably requested of them to release such Lien as soon as is reasonably practicable. Neither
the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate and Opinion of Counsel, and notwithstanding any term in this Indenture or in any Notes Collateral
Document to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and
until it receives such Officer’s Certificate and Opinion of Counsel, upon which it shall be entitled to conclusively rely.
Section 12.3 Suits to Protect the Collateral.
Subject to the provisions of Article VII, the Notes Collateral Documents and the applicable Intercreditor Agreements, the Trustee may
or may direct the Notes Collateral Agent to take all actions it determines in order to:
(a)
enforce any of the terms of the Notes Collateral Documents; and
(b)
collect and receive any and all amounts payable in respect of the Notes Obligations hereunder.
Subject to the provisions of the Notes Collateral Documents and the applicable Intercreditor Agreements, the Trustee
and the Notes Collateral Agent shall have the power to institute and to maintain such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to prevent any impairment of the Collateral by any acts which may be unlawful or
in violation of any of the Notes Collateral Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to preserve or protect its interests and the interests of the Holders in the
Collateral. Nothing in this Section 12.3 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
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Section 12.4 Authorization of Receipt of Funds by the Trustee Under the Notes
Collateral Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for
the benefit of the Holders under the Notes Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 12.5 Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the
Notes Collateral Agent or the Trustee to execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article XII to be sold be under any obligation to ascertain or inquire into the authority of the Company or
the applicable Guarantor to make any such sale or other transfer.
Section 12.6 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article
XII upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article XII; and if the Trustee or the Notes Collateral Agent shall be in the possession of the Collateral under any
provision of this Indenture, then such powers may be exercised by the Trustee or the Notes Collateral Agent.
Section 12.7 Notes
Collateral Agent.
(a) The Company and each of the Holders by acceptance of the Notes hereby designates and appoints the Notes
Collateral Agent as its agent under this Indenture and the Notes Collateral Documents, and the Company and each of the Holders by acceptance of the Notes hereby irrevocably authorizes the Notes Collateral Agent to take such action on its behalf
under the provisions of this Indenture and the Notes Collateral Documents, and to exercise such powers and perform such duties as are expressly delegated to the Notes Collateral Agent by the terms of this Indenture and the Notes Collateral
Documents, and consents and agrees to the terms of each Notes Collateral Document, as the same may be in effect or may be amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with their
respective terms. The Notes Collateral Agent agrees to act as such on the express conditions contained in this Section 12.7. Each Holder agrees that any action taken by the Notes Collateral Agent in accordance with the
provisions of this Indenture and the Notes Collateral Documents, and the exercise by the Notes Collateral Agent of any rights or remedies set forth herein and therein
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shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Notes Collateral Documents, the duties of the Notes
Collateral Agent shall be ministerial and administrative in nature, and the Notes Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Notes Collateral Documents, to which the Notes
Collateral Agent is a party, nor shall the Notes Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or the Company or any Guarantor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Notes Collateral Documents, or otherwise exist against the Notes Collateral Agent. Without limiting the generality of the foregoing sentence, the use of
the term “agent” in this Indenture with reference to the Notes Collateral 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) Notwithstanding anything to the contrary contained herein, the Notes Collateral Agent shall be entitled to act pursuant to the
instructions of the Holders and the Trustee with respect to the Notes Collateral Documents and the Collateral.
(c) The rights,
privileges, benefits, immunities, indemnities and other protections given to the Trustee are extended to, and shall be enforceable by, the Notes Collateral Agent as if the Notes Collateral Agent were named as the Trustee herein and the Notes
Collateral Documents were named as this Indenture herein. The Notes Collateral Agent shall be entitled to compensation, reimbursement and indemnity as set forth in Section 7.7, as if references therein to Trustee were
references to Notes Collateral Agent. For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Notes Collateral Agent hereunder, including, without limitation, its right to be indemnified prior to taking
action, shall survive the satisfaction, discharge or termination of this Indenture or its earlier termination, resignation or removal of the Notes Collateral Agent, in such capacity.
(d) The Company hereby agrees that the Notes Collateral Agent shall hold the Collateral on behalf of and for the benefit of all of the
Holders, the Trustee and the Notes Collateral Agent, in each case pursuant to the terms of the Notes Collateral Documents and that the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Notes Collateral
Agent and the Trustee, and that the Lien of this Indenture and the Notes Collateral Documents in respect of the Trustee, the Notes Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Notes Collateral
Documents and actions that may be taken thereunder. The Notes Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial
Code can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, upon request from the Company, the Trustee shall notify the Notes Collateral Agent thereof and promptly shall deliver such Collateral to the Notes
Collateral Agent or otherwise deal with such Collateral in accordance with the Notes Collateral Agent’s instructions.
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(e) The Notes Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of its powers, and neither the Notes Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder or under any Notes Collateral Documents
to which it is a party, except for its own gross negligence or willful misconduct. The Notes Collateral Agent shall have no liability for any action taken, or errors in judgment made, in good faith by it or any of its officers, employees or agents,
except for willful misconduct or if it shall have been grossly negligent in ascertaining the pertinent facts.
(f) The Notes Collateral
Agent shall be entitled to seek and shall be fully justified in failing or refusing to take any action under this Indenture or the Notes Collateral Documents unless it shall first receive such advice or concurrence of the Trustee or the Holders of a
majority in aggregate principal amount of the Notes as it determines and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. Except as otherwise provided in the Notes Collateral Documents, the Notes Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Notes
Collateral Documents in accordance with a request, direction, instruction or consent of the Trustee or the Holders of a majority in aggregate principal amount of the then outstanding Notes and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Holders. If the Notes Collateral Agent shall request direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes with respect to any action, the Notes
Collateral Agent shall be entitled to refrain from taking such action unless and until the Notes Collateral Agent shall have received direction from the Holders of a majority in aggregate principal amount of the then outstanding Notes, and the Notes
Collateral Agent shall not incur liability to any Person by reason of so refraining.
(g) The Notes Collateral Agent shall take such
action with respect to such Default or Event of Default as may be requested by the Trustee or the Holders of a majority in aggregate principal amount of the Notes (subject to this Section 12.7), subject to the terms of the
Notes Collateral Documents and the applicable Intercreditor Agreements.
(h) Except as otherwise explicitly provided herein or in the
Notes Collateral Documents, neither the Notes Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for
any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof.
(i) If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations arising under, or relating to, this Indenture or the Note Documents, except for any such proceeds or payments received by the Trustee from the Notes Collateral
Agent pursuant to the terms of this Indenture, or (ii) payments from the Notes Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article VI, the Trustee shall promptly turn the same over to the Notes
Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Notes Collateral Agent such proceeds to be applied by the Notes Collateral Agent pursuant to the terms of this Indenture and the Notes Collateral
Documents.
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(j) Neither the Trustee nor the Notes Collateral Agent shall have any obligation whatsoever
to any of the Holders or to the Trustee, in the case of the Notes Collateral Agent, to assure that the Collateral exists or is owned by the Company or any Guarantor or is cared for, protected, or insured or has been encumbered, or that the Notes
Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the Company’s or any
Guarantor’s property constituting collateral intended to be subject to the Lien and security interest of the Notes Collateral Documents has been properly and completely listed or delivered, as the case may be, or the value, genuineness,
validity, ownership, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers
granted or available to the Notes Collateral Agent pursuant to this Indenture or any Notes Collateral Document, other than to exercise such rights, authorities and powers pursuant to the instructions of the Trustee or the Holders of a majority in
aggregate principal amount of the then outstanding Notes or as otherwise provided in the Notes Collateral Documents. Further to the foregoing and notwithstanding anything to the contrary in this Indenture or the Notes Collateral Document, in no
event shall the Notes Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be
created by this Indenture or the Notes Collateral Documents (including without limitation the filing or continuation of any Uniform Commercial Code financing or continuation statements or similar documents or instruments), nor shall the Notes
Collateral Agent be responsible for, or makes any representation regarding, the validity, effectiveness or priority of any of the Notes Collateral Documents or the security interests or Liens intended to be created thereby.
(k) The Notes Collateral Agent shall exercise reasonable care in the custody of any Collateral in its possession or control or any income
thereon. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of Collateral in its possession if the Collateral is accorded treatment substantially equal to that which they accord similar property held for its
own benefit and shall not be liable or responsible for any loss or diminution in value of any of the Collateral, including, without limitation, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by
the Notes Collateral Agent in good faith. The Notes Collateral Agent shall be permitted to use overnight carriers to transmit possessory collateral and shall be not liable for any items lost or damaged in transit.
(l) Upon the receipt by the Notes Collateral Agent of a written request of the Company signed by an Officer (a “Security Document
Order”), the Notes Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Notes Collateral Document to be executed after Issue Date.
Such Security Document Order shall (i) state that it is being delivered to the Notes Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 12.7, (ii) instruct the Notes Collateral
Agent to execute and enter into such Notes Collateral Document and (iii) certify that all covenants and conditions precedent, if any to the execution and delivery of the Notes Collateral Document have been compiled with; provided that in no
event shall the Notes Collateral Agent be required to enter into a Notes Collateral Document that it determines adversely affects the Notes Collateral Agent. The Holders, by their acceptance of the Notes, hereby authorize and direct the Notes
Collateral Agent to execute such Notes Collateral Documents.
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(m) Upon receipt by the Notes Collateral Agent of a Security Document Order, the Notes
Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Intercreditor Agreement. Such Security Document Order shall (i) state that it is
being delivered to the Notes Collateral Agent pursuant to, and is a Notes Collateral Document referred to in this Section 12.7(m), (ii) certify that the Intercreditor Agreement (as applicable) complies with the terms of
this Indenture and the Note Documents and that all covenants and conditions precedent, if any, under this Indenture and the Note Documents to such execution and delivery have been complied with and (iii) instruct the Notes Collateral Agent to
execute and enter into the Intercreditor Agreement; provided that in no event shall the Notes Collateral Agent be required to enter into the Intercreditor Agreement if it determines that such document adversely affects the Notes Collateral
Agent. The Holders, by their acceptance of the Notes, authorize and direct the Notes Collateral Agent to execute such agreements and the Notes Collateral Agent shall be entitled to conclusively rely on such Security Document Order.
(n) The Notes Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the
Notes Collateral Documents, and to the extent not prohibited under the Second Lien Intercreditor Agreement and Junior Lien Intercreditor Agreement, for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and
the Holders in accordance with the provisions of Section 6.10 and the other provisions of this Indenture.
(o)
Notwithstanding anything to the contrary contained in this Indenture or the Notes Collateral Documents, in the event the Notes Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire
control or possession of the Collateral, the Notes Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property under the mortgages or take any such other action if
the Notes Collateral Agent has determined that the Notes Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Notes Collateral Agent
shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(p) The parties hereto and the Holders hereby agree and acknowledge that neither the Notes Collateral Agent nor the Trustee shall assume, be
responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs
(including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind
whatsoever, pursuant to any environmental law as a result of this Indenture or the Notes Collateral Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the
exercise of its rights under this Indenture and the Notes Collateral Documents, the Notes Collateral Agent or the Trustee may hold or obtain indicia of ownership primarily to protect the security interest of the Notes Collateral Agent or the Trustee
in the Collateral and that any such actions taken by the Notes Collateral Agent or the Trustee shall not be construed as or otherwise constitute any participation in the management of such Collateral. In
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the event that the Notes Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry
out any fiduciary or trust obligation for the benefit of another, which in the Notes Collateral Agent’s or the Trustee’s sole discretion may cause the Notes Collateral Agent or the Trustee to be considered an “owner or
operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause the Notes Collateral Agent or the Trustee to incur
liability under CERCLA or any other federal, state or local law, the Notes Collateral Agent and the Trustee reserves the right, instead of taking such action, to either resign as the Notes Collateral Agent or the Trustee or arrange for the transfer
of the title or control of the asset to a court-appointed receiver. Neither the Notes Collateral Agent nor the Trustee shall be liable to the Company, the Guarantors or any other Person for any environmental claims or contribution actions under any
federal, state or local law, rule or regulation by reason of the Notes Collateral Agent’s or the Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of
hazardous materials into the environment. If at any time it is necessary or advisable for property to be possessed, owned, operated or managed by any Person (including the Notes Collateral Agent or the Trustee) other than the Company or the
Guarantors, subject to the terms of the Notes Collateral Documents, a majority in interest of Holders shall direct the Notes Collateral Agent or the Trustee to appoint an appropriately qualified Person (excluding the Notes Collateral Agent or the
Trustee) who they shall designate to possess, own, operate or manage, as the case may be, the property.
(q) Neither the Trustee nor the
Notes Collateral Agent shall be under any obligation to effect or maintain insurance or to renew any policies of insurance or to make any determination or inquire as to the sufficiency of any policies of insurance carried by the Company or any
Guarantor, or to report, or make or file claims or proof of loss for, any loss or damage insured against or that may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be
made.
(r) Following the discharge of the Obligations in respect of the Revolving Credit Agreement, any determination under this Indenture
that is stated to be or is required to be made by the Revolving Credit Agreement Collateral Agent shall be made by the Controlling Collateral Agent provided that if the Controlling Collateral Agent is the Notes Collateral Agent, any such
determination shall be made by the Company in good faith. Neither the Notes Collateral Agent nor the Trustee shall have any responsibility or liability for the actions or omissions of the Revolving Credit Agreement Collateral Agent or the collateral
agent under the Term Loan Credit Agreement or any other “Controlling Collateral Agent” under any Intercreditor Agreement, nor shall the Trustee or Notes Collateral Agent be obligated at any time to indemnify any person in connection with
the exercise of any remedy under the Notes Collateral Documents.
(s) The Notes Collateral Agent may resign at any time by notice to the
Trustee and the Company, such resignation to be effective upon the acceptance of a successor agent to its appointment as Notes Collateral Agent. The Notes Collateral Agent may be removed by the Company at any time, upon thirty days written notice to
the Notes Collateral Agent. If the Notes Collateral Agent resigns or is removed under this Indenture, the Company shall appoint a successor collateral agent. If no successor collateral agent is appointed and has accepted such appointment within 30
days after the Notes Collateral Agent gave notice of resignation or was removed, the
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retiring Notes Collateral Agent may (at the expense of the Company), at its option, appoint a successor Notes Collateral Agent or petition a court of competent jurisdiction for the appointment of
a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Notes Collateral Agent, and the term “Notes
Collateral Agent” shall mean such successor collateral agent, and the retiring or removed Notes Collateral Agent’s appointment, powers and duties as the Notes Collateral Agent shall be terminated. After the retiring Notes Collateral
Agent’s resignation or removal hereunder, the provisions of this Section 12.7 (and Section 7.7) shall continue to inure to its benefit and the retiring or removed Notes Collateral Agent shall
not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Notes Collateral Agent under this Indenture.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices. Any notice, request, direction, consent or communication made pursuant to the provisions of this Indenture
or the Notes shall be in writing and delivered in person, sent by electronic mail in pdf format, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer or to any Guarantor:
Accendra Health, Inc.
4435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Email: investor.relations@accendra.com
with a copy to:
Kirkland & Ellis LLP
601 Lexington Ave
New York, New York 10022
Attention: Jennifer L. Lee, P.C .
Email: jennifer.lee@kirkland.com
if to the Trustee or the Notes Collateral Agent, at its Corporate Trust Office, which Corporate Trust Office for purposes of this Indenture is
at the date hereof located at:
Regions Bank
1180 West Peachtree Street, Suite 1200
Atlanta, GA 30309
Attention: Corporate Trust Services – Accendra Health, Inc.
Email: Kristine.prall@regions.com
The Issuer, the Trustee or the Notes Collateral Agent by written notice to the other may designate additional or different addresses for
subsequent notices or communications.
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Any notice or communication to the Issuer or the Guarantors shall be deemed to have been
given or made as of the date so delivered if personally delivered or if delivered electronically, in pdf format; when receipt is acknowledged, if telecopied; and seven (7) calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication to the Trustee or the Notes Collateral Agent shall be deemed delivered upon
receipt.
Any notice or communication sent to a Holder shall be electronically delivered or mailed to the Holder at the Holder’s
address as it appears in the Notes Register and shall be sufficiently given if so sent within the time prescribed.
Failure to mail or
deliver electronically 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 sent in the manner provided above, it is duly given, whether or not the
addressee receives it, except that notices to the Trustee or the Notes Collateral Agent shall be effective only upon receipt.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event
(including any notice of redemption or purchase) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to DTC (or its designee) pursuant to the standing instructions from DTC or its designee.
Section 13.2 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee and/or the Notes Collateral Agent, as applicable, to
take or refrain from taking any action under this Indenture or any Notes Collateral Document, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or the Notes Collateral Agent, as applicable:
(1) an Officer’s Certificate in form satisfactory to the Trustee or the Notes Collateral Agent, as applicable (which
shall include the statements set forth in Section 13.3 hereof) stating that, in the opinion of the signers, all covenants and conditions precedent, if any, provided for in this Indenture and the Notes Collateral Documents
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form satisfactory to the Trustee
or the Notes Collateral Agent (which shall include the statements set forth in Section 13.3 hereof) stating that, in the opinion of such counsel, all such covenants and conditions precedent have been complied with.
Section 13.3 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture:
(1) a statement that the individual making such certificate or opinion has
read such covenants or conditions precedent provided for in this Indenture and the Notes Collateral Documents relating to the proposed action;
184
(2) 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;
(3) a statement
that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such covenants or conditions precedent have been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, all covenants and conditions precedent as
provided for in this Indenture and the Notes Collateral Documents relating to the proposed action have been complied with.
In giving such Opinion of
Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 13.4 When Notes Disregarded. In determining whether the Holders of the required aggregate principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee or the Notes
Collateral Agent shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee or the Notes Collateral Agent actually knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Notes outstanding at the time shall be considered in any such determination.
Section 13.5 Rules by Trustee,
Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 13.6 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking
institutions are authorized or required to be closed in New York, New York or the jurisdiction of the place of payment. If a payment date or a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 13.7 Governing Law. THIS INDENTURE, THE NOTES AND THE GUARANTEES AND THE RIGHTS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.8 Jurisdiction. The
Issuer and the Guarantors agree that any suit, action or proceeding against the Issuer or any Guarantor brought by any Holder or the Trustee arising out of or based upon this Indenture, the Note Guarantee or the Notes may be instituted in any state
or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any suit,
action or proceeding. The Issuer and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in
185
connection with this Indenture, the Note Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in
such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Issuer and the Guarantors agree that final judgment in any such suit, action
or proceeding brought in such court shall be conclusive and binding upon the Issuer or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Issuer or the Guarantors, as the case may be, are subject by
a suit upon such judgment.
Section 13.9 Waivers of Jury Trial. EACH OF THE ISSUER, THE GUARANTORS, THE HOLDERS, THE TRUSTEE
AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
NOTES OR THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.
Section 13.10 USA PATRIOT Act. The parties hereto acknowledge
that in accordance with Section 326 of the USA PATRIOT Act, the Trustee or the Notes Collateral Agent, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and
record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Indenture agree that they will provide the Trustee or the Notes Collateral Agent with such information as it may
request in order to satisfy the requirements of the USA PATRIOT Act.
Section 13.11 No Recourse Against Others. No director,
officer, employee, incorporator or shareholder of the Issuer or any of its respective Subsidiaries or Affiliates, or such (other than the Issuer and the Guarantors), shall have any liability for any obligations of the Issuer or the Guarantors under
the Note Documents or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
Section 13.12 Successors. All agreements of the Issuer and each Guarantor in this Indenture and the Notes shall bind their
respective successors. All agreements of the Trustee or the Notes Collateral Agent in this Indenture shall bind their respective successors.
Section 13.13 Counterparts; 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.
The exchange of copies of this Indenture and of signature
pages by facsimile, PDF or other electronic transmission (including a digital signature provided by DocuSign) 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, PDF or other electronic methods shall be deemed to be their original signatures for all purposes.
186
Unless otherwise provided in this Indenture or in any Note, the words “execute”, “execution”, “signed”, and “signature” and words of similar import
used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic
signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the
fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the
Uniform Electronic Transactions Act; provided that, notwithstanding anything to the contrary set forth herein, neither the Trustee nor the Notes Collateral Agent is under any obligation to agree to accept electronic signatures in any form or
format unless expressly agreed to by the Trustee or the Notes Collateral Agent pursuant to procedures approved by the Trustee or the Notes Collateral Agent, as applicable.
Section 13.14 Table of Contents; Headings. 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 intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 13.15 Force Majeure. In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, pandemics, epidemics, 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 and hardware) services, it being understood that the Trustee or the
Notes Collateral Agent, as applicable, shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.16 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 13.17 Intercreditor Agreements. Reference is made to the Intercreditor Agreements. Each Holder, by its acceptance of a
Note, (a) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements, and (b) authorizes and instructs the Trustee and the Notes Collateral Agent, as applicable, to enter into
(i) the Intercreditor Agreements, as Trustee and as Notes Collateral Agent, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein and (ii) any joinder
thereto or any amendment, restatement, amendment and restatement, supplement or other modification permitted pursuant to Section 7.11, in each case, subject to the terms of the applicable Intercreditor Agreements and the
terms thereof. In the event of any conflict or inconsistency between any applicable Intercreditor Agreement and this Indenture, the provisions of such Intercreditor Agreement shall control.
187
Section 13.18 Waiver of Immunities . To the extent that the Issuer or any
Guarantor or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, or from attachment in aid of execution of judgment, or from execution of judgment, or
other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to their obligations, liabilities or any other matter under or
arising out of or in connection with this Indenture, the Notes or the Note Guarantees, the Issuer and each Guarantor hereby irrevocably and unconditionally, to the extent permitted by applicable law, waives and agrees not to plead or claim any such
immunity and consents to such relief and enforcement.
Section 13.19 Judgment Currency. The Issuer and each Guarantor agrees
to indemnify the recipient against any loss incurred by such recipient as a result of any judgment or order being given or made against the Issuer or any Guarantor for any amount due hereunder and such judgment or order being expressed and paid in a
currency (the “Judgment Currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange in The City of New York at which such party on the date of payment of such judgment or order is able to purchase U.S. dollars with the amount of the Judgment Currency actually received by such
party if such party had utilized such amount of Judgment Currency to purchase U.S. dollars as promptly as practicable upon such party’s receipt thereof. The foregoing indemnity shall constitute a separate and independent obligation of the
Issuer and each Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
[Signature on following pages]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the
date and year first written above.
ACCENDRA HEALTH, INC.,
as the Company
By:
/s/ Jonathan A. Leon
Name:
Jonathan A. Leon
Title:
Executive Vice President and Chief Financial Officer
BARISTA ACQUISITION I, LLC
BARISTA ACQUISITION II, LLC,
as Guarantors
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President, General Counsel and Corporate Secretary
APRIA HEALTHCARE GROUP LLC
APRIA HEALTHCARE LLC
APRIA HOLDCO LLC
APRIA, INC.
CPAP SLEEP STORE LLC
HEALTHY LIVING HOME MEDICAL LLC,
as Guarantors
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer
BYRAM HEALTHCARE CENTERS, INC.
BYRUN HOLDINGS I, INC.
LOFTA,
as
Guarantors
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer and President
[Signature Page to the
Second Lien Notes Indenture]
O&M BYRAM HOLDINGS, GP,
as Guarantor
By:
BARISTA ACQUISITION I, LLC and
BARISTA ACQUISITION II, LLC
Its: Partners
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer
[Signature Page to the
Second Lien Notes Indenture]
REGIONS BANK,
as Trustee and
Notes Collateral Agent
By:
/s/ Kristine Prall
Name:
Kristine Prall
Title:
Vice President
[Signature Page to the
Second Lien Notes Indenture]
EXHIBIT A
[FORM OF FACE OF GLOBAL RESTRICTED NOTE]
[Applicable Restricted Notes Legend]
[Depository Legend, if applicable]
[OID Legend, if applicable]
No. [___]
Principal Amount $[___________] [as revised
by the Schedule of Increases and Decreases in
Global Note attached hereto]1
CUSIP NO. _____________
ACCENDRA HEALTH, INC.,
9.750%
Senior Secured Second Lien Notes due 2033
Accendra Health, Inc., a Virginia corporation (the “Issuer”), promises to pay to
[Cede & Co.],2 or its registered assigns, the principal sum of _______________ U. S. dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto],3 on June 15, 2033.
Interest Payment Dates: June 15 and December 15, commencing on
December 15, 2026
Record Dates: June 1 and December 1
Additional provisions of this Note are set forth on the other side of this Note.
1
Insert in Global Notes only.
2
Insert in Global Notes only.
3
Insert in Global Notes only.
A-1
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
ACCENDRA HEALTH, INC.
By:
Name:
Title:
A-2
TRUSTEE CERTIFICATE OF AUTHENTICATION
This Note is one of the 9.750% Senior Secured Second Lien Notes due 2033 referred to in the within-mentioned Indenture.
REGIONS BANK,
as
Trustee
By:
Authorized Signatory
Dated:
A-3
[FORM OF REVERSE SIDE OF NOTE]
ACCENDRA HEALTH, INC.
9.750%
SENIOR SECURED SECOND LIEN NOTES DUE 2033
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the
Indenture.
1. Interest
The Issuer
promises to pay interest on the principal amount of this Note at 9.750% per annum from June 15, 2026 until maturity. The Issuer will pay interest semi-annually in arrears every June 15 and December 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided, that the first Interest Payment Date shall be December 15, 2026. The Issuer shall pay interest on overdue principal at the rate specified herein, and it 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. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment
By no later than 11:00 a.m. (New York City time) on the date on which any principal of, premium, if any, or interest, on any Note is due
and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, interest when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding June 1 and December 1 at the office or agency of the Issuer maintained for
such purpose pursuant to Section 2.3 of the Indenture. The principal of (and premium, if any) and interest on the Notes shall be payable at the office or agency of Paying Agent or Registrar designated by the Issuer maintained for such purpose
(which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however,
that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account
located in the United States maintained by the payee, subject to the third to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire
transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by
a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made in accordance with the Notes Register, or by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United
States 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 15 days immediately preceding the relevant due date for payment (or such
A-4
other date as the Trustee may accept in its discretion). If an Interest Payment Date or a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
3.
Paying Agent and Registrar
The Issuer initially appoints Regions Bank (the “Trustee”) as Registrar and Paying
Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer agent.
4. Indenture
The Issuer issued the Notes
under an Indenture dated as of June 15, 2026, among the Issuer, the Guarantors named therein and the Trustee and the Notes Collateral Agent (as it may be amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”). The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event
of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall control.
The Notes are
senior obligations of the Issuer. The aggregate principal amount of Notes that may be authenticated and delivered under the Indenture is unlimited. This Note is one of the 9.750% Senior Secured Second Lien Notes due 2033 referred to in the
Indenture. The Notes include (i) (A) $697,970,754 principal amount of the Issuer’s 9.750% Senior Secured Second Lien Notes due 2033 issued under the Indenture on June 15, 2026 and (B) up to $3,900,270 principal amount of the
Issuer’s 9.750% Senior Secured Second Lien Notes due 2033 issued under the Indenture in connection with the Exchange Offers on the Exchange Offer Final Settlement Date (together, the “Initial Notes”) and (ii) if and
when issued, additional Notes that may be issued from time to time under the Indenture subsequent to June 15, 2026 (the “Additional Notes”) as provided in Section 2.1(a) of the Indenture. The Initial Notes and the
Additional Notes shall be considered collectively as a single class for all purposes of the Indenture; provided that (i) the Initial Notes of any series may be issued in tranches represented by one or more CUSIP, ISIN or other
identifying numbers in order to distinguish any Notes of any such series of Initial Notes that are not fungible for U.S. federal income tax purposes and (ii) the Additional Notes will not be issued with the same CUSIP as the existing Notes
unless such Additional Notes are fungible with the existing Notes for U.S. federal income tax purposes. The Indenture imposes certain limitations on the incurrence of indebtedness, the making of restricted payments, the sale of assets, the
incurrence of certain liens, the making of payments for consents, the entering into of agreements that restrict distribution from restricted subsidiaries and the consummation of mergers and consolidations. The Indenture also imposes requirements
with respect to the provision of financial information and the provision of guarantees of the Notes by certain subsidiaries.
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5. Guarantees
From and after the Issue Date, to guarantee the due and punctual payment of the principal, premium, if any, interest (including post-filing or
post-petition interest in any proceeding under Bankruptcy Law) on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or
otherwise, according to the terms of the Notes and the Indenture, each Guarantor will unconditionally guarantee (and future guarantors, jointly and severally with the Guarantors, will fully and unconditionally Guarantee) such obligations on a senior
basis pursuant to the terms of the Indenture.
6. Redemption
(a) At any time prior to June 15, 2029, the Company may redeem the Notes in whole or in part, at its option, upon not less than 10 nor
more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, at a redemption price (expressed as a percentage of the principal amount of the Notes to be
redeemed) equal to 100.000% plus the relevant Applicable Premium as of, and accrued and unpaid interest, if any, to but excluding the date of redemption (the “Redemption Date”), subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment date.
(b) At any time and from time to time prior to June 15,
2029, the Company may on one or more occasions, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem up to 40.0% of
the principal amount of Notes issued under the Indenture (together with Additional Notes) at a redemption price (expressed as a percentage of the principal amount of Notes to be redeemed) equal to 109.750%, plus accrued and unpaid interest, if any,
to but excluding, the applicable Redemption Date, subject to the right of Holders of record of the Notes on the relevant record date to receive interest due on the relevant interest payment date, with the Net Cash Proceeds received by the Company of
one or more Equity Offerings of the Company; provided that not less than 40.0% of the original principal amount of the then-outstanding Notes issued under the Indenture remains outstanding immediately after the occurrence of each such
redemption (excluding Notes held by the Company or any of its Restricted Subsidiaries), unless all such Notes are redeemed substantially concurrently; provided further that each such redemption occurs not later than 180 days after the date of
closing of the related Equity Offering. The Trustee shall select the Notes to be purchased in the manner described under Sections 5.1 through 5.6 of the Indenture.
(c) Further, prior to June 15, 2029, the Company may, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the
Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, redeem the Notes issued under Indenture (including any Additional Notes) upon the consummation of a Change of Control at a redemption price equal to
103.000% of the aggregate principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
(d)
Except pursuant to clauses (a), (b) and (c) of this paragraph 6, the Notes will not be redeemable at the Company’s option prior to June 15, 2029.
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(e) At any time and from time to time on or after June 15, 2029, the Company may redeem
the Notes, in whole or in part, upon not less than 10 nor more than 60 days’ prior notice, with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register at the redemption prices (expressed as
percentages of the principal amount of the Notes to be redeemed) set forth in the table below, plus accrued and unpaid interest thereon, if any, to but excluding the applicable Redemption Date, subject to the right of Holders of record of the Notes
on the relevant record date to receive interest due on the relevant interest payment date, if redeemed during the twelve-month period beginning on June 15 of each of the years indicated in the table below:
Year
Percentage
2029
104.875
%
2030
102.4375
%
2031 and thereafter
100.000
%
(f) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of
Control Offer or Asset Disposition Offer, if Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making
such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party shall have the right upon not less than 10 nor more than 60 days’ prior notice,
with a copy to the Trustee, to each Holder of Notes to the address of such Holder appearing in the Notes Register, given not more than 30 days following such purchase date to redeem all Notes that remain outstanding following such purchase at a
redemption price equal to the price offered to each other Holder (excluding any early tender or incentive fee) in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to but
not including, the date of such redemption. In determining whether the Holders of at least 90% of the aggregate principal amount of the outstanding Notes have validly tendered and not validly withdrawn such Notes in a tender offer, including a
Change of Control Offer or Asset Disposition Offer, Notes owned by the Company or its Affiliates or by funds controlled or managed by any Affiliate of the Company, or any successor thereof, shall be deemed to be outstanding for the purposes of such
tender offer.
(g) Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or
portions thereof called for redemption on the applicable Redemption Date.
(h) Any redemption pursuant to this paragraph 6 shall be made
pursuant to the provisions of Section 5.1 through 5.6 of the Indenture.
The Company is not required to
make mandatory redemption or sinking fund payments with respect to the Notes.
7. Reserved
8. Repurchase Provisions
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If a Change of Control occurs, unless a third party makes a Change of Control Offer or the
Company has previously or substantially concurrently therewith delivered a redemption notice with respect to all of the outstanding Notes, each Holder will have the right to require the Issuer to repurchase from each Holder all or any part (equal to
a minimum denomination of $1.00 or in integral multiples of $1.00 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101.000% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to
but excluding the date of repurchase; provided that if the repurchase date is on or after the record date and on or before the corresponding interest payment date, then Holders in whose name the Notes are registered at the close of business
on such record date will receive the interest due on the repurchase date, as provided in, and subject to the terms of, the Indenture.
Upon certain Asset Dispositions, the Issuer may be required to use the Excess Proceeds from such Asset Dispositions to offer to purchase Notes
and, at the Issuer’s option, other First Lien Obligations out of the Excess Proceeds in accordance with the procedures set forth in Section 3.5 and in Article V of the Indenture.
9. Denominations; Transfer; Exchange
The
Notes shall be issuable only in fully registered form in minimum denominations of principal amount of $1.00 and any integral multiple of $1.00 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Note (A) for a period beginning (1) fifteen (15) calendar days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) fifteen
(15) calendar days before an Interest Payment Date and ending on such Interest Payment Date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
10. Persons Deemed Owners
The registered
Holder of this Note may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal, premium, if any, interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Issuer at its written request unless an abandoned property law designates another Person to receive such money. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment
as general creditors unless an abandoned property law designates another person for payment.
12. Discharge and Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations
under the Notes and the Indenture and have Liens, if any, on the Collateral securing the Notes released if the Issuer deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any and interest on the
Notes to redemption or maturity, as the case may be.
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13. Amendment, Supplement, Waiver
Subject to certain exceptions contained in the Indenture, the Note Documents may be amended, or a Default thereunder may be waived, with the
consent of the Holders of a majority in aggregate principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Issuer, the Guarantors, the Trustee and the Notes Collateral Agent, as applicable, may amend or
supplement the Note Documents as provided in the Indenture.
14. Defaults and Remedies
If any Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer or
certain Guarantors) occurs and is continuing, the Trustee by written notice to the Issuer, or the Holders of at least 30.0% in principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of
and accrued and unpaid interest, if any, on all the Notes to be due and payable. Upon such a declaration, such principal and accrued and unpaid interest, will be due and payable immediately. If a bankruptcy, insolvency or reorganization of the
Issuer or a Significant Subsidiary (or any group of Restricted Subsidiaries, that taken together as of the latest audited consolidated financial statements for the Issuer and its Restricted Subsidiaries, would constitute a Significant Subsidiary)
occurs and is continuing, the principal of and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of at least 30.0% in aggregate principal amount of the outstanding Notes may rescind any acceleration with respect to the Notes and its consequences. A notice of Default may not be given with respect to any action taken,
and reported publicly or to Holders, more than two years prior to such notice of Default.
Any Noteholder Direction provided by any one or
more Directing Holders must be accompanied by a Position Representation, which representation, in the case of a Noteholder Direction relating to the 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 make a Verification Covenant. In any case in which the Holder is
DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee and DTC shall be entitled to conclusively rely on such Position
Representation and Verification Covenant in delivering any direction to the Trustee and the Notes Collateral Agent, as applicable.
If,
following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company 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 provides to the Trustee and the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that the Company has initiated litigation in a court of competent jurisdiction seeking a determination that such
Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any
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Default, Event of Default or acceleration (or notice thereof) 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 Default or Event of Default shall be automatically reinstituted and any remedy stayed pending a Final Decision. Once such Officer’s Certificate has been provided to the Trustee, the Trustee shall take
no further action pursuant to the related Noteholder Direction until it has actual knowledge of a Final Decision. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Company provides to the Trustee and
the Notes Collateral Agent, as applicable, an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period
with respect to any Default or 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 Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such 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, with the effect that such Default or Event of Default shall be deemed never to have occurred, acceleration voided
and neither the Trustee nor the Notes Collateral Agent shall be deemed to have received such Noteholder Direction or any notice of such Default or Event of Default.
Notwithstanding anything in the preceding two paragraphs, any Noteholder Direction delivered to the Trustee and the Notes Collateral Agent, as
applicable, during the pendency of an Event of Default as the result of a bankruptcy or similar proceeding shall not require compliance with the preceding two paragraphs.
15. Security
The Notes and the Note
Guarantees will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Notes Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold a security interest in the
Collateral for its benefit and the benefit of the Holders of the Notes, in each case pursuant to the Notes Collateral Documents. Each Holder, by accepting this Note, consents and agrees to the terms of the Notes Collateral Documents (including the
provisions providing for the foreclosure and release of Collateral), each as may be in effect or may be amended from time to time in accordance with their terms and the Indenture, and authorizes and directs each of the Trustee and the Notes
Collateral Agent, as applicable, to enter into the Notes Collateral Documents on the Issue Date (or thereafter, in accordance with the terms of the Indenture), and to perform its obligations and exercise its rights thereunder in accordance
therewith.
16. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer, Guarantors or their Affiliates with the same rights it would have if it were not Trustee. In addition, the Trustee shall be permitted to engage in transactions with the Issuer and its Affiliates and
Subsidiaries.
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17. No Recourse Against Others
No director, officer, employee, incorporator or shareholder of the Issuer or any of its Subsidiaries or Affiliates, as such (other than the
Issuer and the Guarantors), shall have any liability for any obligations of the Issuer or the Guarantors under the Note Documents or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting
a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that
such a waiver is against public policy.
18. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
20. CUSIP and ISIN Numbers
The Issuer
has caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or purchase 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 or purchase and reliance may be placed only on the other identification numbers placed thereon.
21. Governing Law
This Note shall be
governed by, and construed in accordance with, the laws of the State of New York.
The Issuer will furnish to any Holder upon written
request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Accendra Health, Inc.
4435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Chief Financial Officer
Email: investor.relations@accendra.com
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and
transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your
Signature:
Signature Guarantee:
(Signature
must be guaranteed)
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
The
undersigned hereby certifies that it ☐ is / ☐ is not an Affiliate of the Issuer and that, to its knowledge, the proposed transferee ☐ is / ☐ is not an Affiliate of the Issuer.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of
the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Issuer or any Affiliate of the Issuer, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
(1)
☐
acquired for the undersigned’s own account, without transfer; or
(2)
☐
transferred to the Issuer; or
(3)
☐
transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or
(4)
☐
transferred pursuant to an effective registration statement under the Securities Act; or
(5)
☐
transferred pursuant to and in compliance with Regulation S under the Securities Act; or
(6)
☐
transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this
certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5) or (6) is checked, the Issuer may require, prior to registering any such transfer of the Notes, in its sole
discretion, such legal opinions, certifications and other information as the Issuer may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements
of the Securities Act of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
Signature
Signature Guarantee:
(Signature must be guaranteed) Signature
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
TO BE
COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own
account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and
is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated:
[TO BE ATTACHED TO GLOBAL NOTES]
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES
The following increases or decreases 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 Notes
Custodian
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
Section 3.5 ☐ Section 3.9 ☐
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, state
the amount in principal amount (must be in minimum denominations of $1.00 or an integral multiple of $1.00 in excess thereof): $___________________________________ and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased):
_________________.
Date: __________ Your Signature
_____________________________________________________
(Sign
exactly as your name appears on the other side of the Note)
Signature Guarantee:
(Signature must be guaranteed)
The signature(s) should be
guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule
17Ad-15.
EXHIBIT B
Form of Supplemental Indenture to Add Guarantors
[ ] SUPPLEMENTAL INDENTURE, (this “Supplemental Indenture”) dated as of [ ], by and among the parties that are
signatories hereto as Guarantors (the “Guaranteeing Entities” and each a “Guaranteeing Entity”), Accendra Health, Inc., as Issuer, and Regions Bank, a national banking association, as Trustee and Notes
Collateral Agent under the Indenture referred to below.
W I T N E S S E T
H:
WHEREAS, each of Accendra Health, Inc., the Guarantors named therein and the Trustee and Notes Collateral Agent have
heretofore executed and delivered an indenture dated as of June 15, 2026 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of an aggregate principal amount of $[ ] million
of 9.750% Senior Secured Second Lien Notes due 2033 of the Issuer (the “Notes”);
WHEREAS, the Indenture provides that
under certain circumstances each Guaranteeing Entity shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Guaranteeing Entity shall unconditionally guarantee, on a joint and several basis with the other
Guarantors, 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 9.1 of the Indenture, the Issuer, any Guarantor, the Trustee and the Notes Collateral
Agent are authorized to execute and deliver a supplemental indenture to add additional Guarantors, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Entity, the Issuer, the other Guarantors, the Trustee and the Notes Collateral Agent mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals
hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to
any particular Section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
Section 2.1. Agreement to be Bound. Each Guaranteeing Entity hereby becomes a party to the Indenture as a Guarantor and as such
will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
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Section 2.2. Guarantee. Each Guaranteeing Entity agrees, on a joint and several
basis with all the existing Guarantors [and the other Guaranteeing Entities], to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture on
a senior basis.
ARTICLE III
MISCELLANEOUS
Section 3.1.
Notices. All notices and other communications to the Guaranteeing Entities shall be given as provided in the Indenture to such Guaranteeing Entities, at their addresses set forth below, with a copy to the Issuer as provided in the Indenture
for notices to the Issuer.
[INSERT ADDRESS]
Section 3.2. Merger and Consolidation. No Guaranteeing Entity shall sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with
Section 4.1(f) of the Indenture.
Section 3.3. Release of Guarantee. This Guarantee shall be
released in accordance with Section 10.2 of the Indenture.
Section 3.4. Parties. Nothing expressed
or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders, the Trustee and the Notes Collateral Agent, any legal or equitable right, remedy or claim under or in respect of this Supplemental
Indenture or the Indenture or any provision herein or therein contained.
Section 3.5. Governing Law. This Supplemental
Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 3.6.
Severability. In case any provision in this Supplemental Indenture 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 and such
provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.7. Benefits
Acknowledged. Each Guaranteeing Entity’s Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Entity 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.
Section 3.8. 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 of
Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
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Section 3.9. The Trustee and the Notes Collateral Agent. Neither Trustee nor the
Notes Collateral Agent makes any representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
Section 3.10. Counterparts. The parties hereto 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.
The exchange of copies of this Indenture and of signature
pages by facsimile, PDF or other electronic transmission (including a digital signature provided by DocuSign) 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, PDF or other electronic methods shall be deemed to be their original signatures for all purposes. Unless otherwise provided in this Indenture or in any Note, the
words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the
transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and 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 in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in
Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything to the contrary set forth
herein, neither the Trustee nor the Notes Collateral Agent is under any obligation to agree to accept electronic signatures in any form or format unless expressly agreed to by the Trustee or the Notes Collateral Agent pursuant to procedures approved
by the Trustee or the Notes Collateral Agent, as applicable.
Section 3.11. Execution and Delivery. Each Guaranteeing Entity
agrees that its Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Guarantee.
Section 3.12. Headings. The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of
reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
[GUARANTEEING ENTITY],
as a
Guarantor
By:
Name:
Title:
ACCENDRA HEALTH, INC.
By:
Name:
Title:
REGIONS BANK,
as Trustee and Notes
Collateral Agent
By:
Name:
Title:
EX-4.5
EX-4.5
Filename: d100115dex45.htm · Sequence: 4
EX-4.5
Exhibit 4.5
This SECOND SUPPLEMENTAL INDENTURE, (this “Second Supplemental Indenture”) dated as of June 9, 2026, by and among
Accendra Health, Inc., f/k/a Owens & Minor, Inc., as issuer (the “Issuer”), the parties that are signatories hereto as Guarantors (the “Guarantors” and each a “Guarantor”) and Regions
Bank, a banking institution organized and existing under the laws of the State of Alabama, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H:
WHEREAS, each of the Issuer, the Guarantors named therein and the Trustee have heretofore executed and delivered an indenture dated as of
March 10, 2021 (as amended, supplemented, waived or otherwise modified, including by the First Supplemental Indenture dated as of March 29, 2022, the “Indenture”), providing for the issuance of an aggregate principal
amount of $500.0 million of 4.500% Senior Notes due 2029 of the Issuer (the “Notes”);
WHEREAS, the Issuer has
solicited consents (the “Consent Solicitation”) from the holders of the Notes to certain proposed amendments to the Indenture, as set forth in Section 2.1 of this Second Supplemental Indenture (the “Proposed
Amendments”), in accordance with the terms and subject to the conditions set forth in that certain Confidential Offering Memorandum and Consent Solicitation Statement of the Issuer, dated May 22, 2026 (as amended, supplemented or
otherwise modified prior to the date hereof, the “Offering Memorandum”);
WHEREAS, pursuant to Section 9.2 of the
Indenture, with the consent of the holders of at least a majority in principal amount of all the outstanding Notes under the Indenture (the “Requisite Consents”) including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Notes, the Issuer, the Guarantors and the Trustee may amend or supplement the Indenture, any Guarantee and the Notes issued under the Indenture;
WHEREAS, the Issuer has received the Requisite Consents to the Proposed Amendments, as certified by an Officer’s Certificate attaching
the report of the Exchange Agent (as defined in the Offering Memorandum) as to the delivery of consents, delivered to the Trustee in connection with the execution and delivery of this Second Supplemental Indenture; and
WHEREAS, pursuant to Sections 9.2 and 9.6 of the Indenture, the Trustee is authorized to execute and deliver this Second Supplemental
Indenture, and the Issuer and Guarantors have requested that the Trustee execute and deliver this Second 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 hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Second Supplemental Indenture, terms defined in the Indenture or in the preamble or
recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental
Indenture as a whole and not to any particular Section hereof.
ARTICLE II
AGREEMENT TO THE PROPOSED AMENDMENTS TO THE INDENTURE
Section 2.1 Amendments.
(a) The Indenture is hereby amended to delete the following sections in their entirety, as well as the defined terms and other references
related to such sections to the extent such defined terms and other references are no longer used in the Indenture and, in the case of each such section, the phrase “[Intentionally Omitted]” is inserted in lieu thereof:
•
Section 3.2 (Limitation on Indebtedness);
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•
Section 3.3 (Limitation on Restricted Payments);
•
Section 3.4 (Limitation on Restrictions on Distributions from Restricted Subsidiaries);
•
Section 3.5 (Limitation on Sales of Assets and Subsidiary Stock);
•
Section 3.6 (Limitation on Liens);
•
Section 3.7 (Limitation on Guarantees);
•
Section 3.8 (Limitation on Affiliate Transactions);
•
Section 3.9 (Change of Control);
•
Section 3.10 (Reports), other than the requirement to provide information required by Rule 144A(d)(4) and
clause (f) thereof;
•
Section 3.16 (Compliance Certificate);
•
Section 3.17 (Further Instruments and Acts);
•
Section 3.21 (Suspension of Certain Covenants on Achievement of Investment Grade Status);
•
Section 4.1(a)(2), (a)(3) and (a)(4) and (f) (Merger, Amalgamation and Consolidation);
•
Section 6.1(a)(3), (a)(4), (a)(5) and (a)(6) (Events of Default); and
•
Section 8.4(2), (3), (4), (5) and (7) (Conditions to Legal or Covenant Defeasance).
(b) The following definitions are hereby added to Section 1.1 of the Indenture:
“Commitment Agreement” means that certain commitment and consent letter, dated as of May 11, 2026, by and among the
Issuer and each other party thereto.
“Early Settlement Date” means the first date on which any New Notes are issued in
exchange for Notes pursuant to the terms of the Offering Memorandum.
“First Lien Intercreditor Agreement” means that
certain First Lien Pari Passu Intercreditor Agreement, dated as of March 29, 2022 as amended on or around the issue date of the New Notes, by and among the collateral agents for each of the credit agreements, the Issuer and the Guarantors.
“First Lien Notes” means the new 9.000% Senior Secured First Lien Notes due 2032 to be issued by the Issuer pursuant to the
terms of the Offering Memorandum.
“Junior Lien Intercreditor Agreement” means that certain Junior Lien Intercreditor
Agreement, to be entered into by the Second Lien Notes collateral agent, the First Lien Notes collateral agent and the collateral agents for each of the credit agreements.
“New Notes” means, collectively, the First Lien Notes and Second Lien Notes.
“New Notes Indentures” means the indentures governing the First Lien Notes due 2032 and the Second Lien Notes due 2033.
“Notes Collateral Documents” means the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, any
other intercreditor agreements entered into from time to time, the Notes security documents and the supplements thereto.
“Second
Lien Notes” means the new 9.750% Senior Secured Second Lien Notes due 2033 to be issued by the Issuer pursuant to the terms of the Offering Memorandum.
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(c) Section 13.17 of the Indenture is hereby deleted and replaced in its entirety with the
following:
Section 13.17 Mutual Release.
(a) It is hereby agreed that, effective upon the Early Settlement Date, to the greatest extent authorized by applicable law, in exchange for
good and valuable consideration, the adequacy of which is hereby confirmed, (x) each of the Issuer and the Guarantors (in their capacity as such, each, a “Notes Party,” and collectively, the “Notes
Parties”), on behalf of themselves and their Related Parties (as defined below), hereby releases and forever discharges, absolves and acquits (as the case may be) (i) each other
Notes Party and each of their respective Related Parties in their respective capacities as such and (ii) the Trustee, each holder of Notes (solely in its capacity as such), and each of their respective Related Parties in their respective
capacities as such (hereinafter, all of the above released parties in this clause (x)(ii) each in their respective capacities as such, collectively referred to as the “Holder Releasees”), and (y) each holder of the Notes
(solely in its capacity as such), on behalf of themselves and their Related Parties, hereby releases and forever discharges, absolves and acquits (as the case may be) each and all of the Notes Parties and the Trustee and each of their respective
Related Parties in their respective capacities as such (hereinafter, all of the above released parties in this clause (y) collectively referred to as the “Notes Party Releasees,” and together with the Holder Releasees, the
“Released Parties,” and each, a “Released Party”), and (z) each holder of Notes (solely in its capacity as such), on behalf of themselves and their Related Parties, hereby releases and forever discharges,
absolves and acquits (as the case may be) each other, from any and all claims, counterclaims, demands, damages, losses, costs, expenses (including attorneys’ fees), debts, suits, obligations, liabilities, cross-claims, interests, suits,
controversies, actions, proceedings, remedies, demands, causes of action, defenses, guaranties, judgments, rights, liabilities, offsets, powers, privileges, licenses, liens, franchises, and rights to reimbursement, subrogation, contribution,
indemnification, recoupment, or other payment (collectively, the “Losses”) of any kind or nature whatsoever, whether individually or collectively, arising on or prior to the date hereof, whether arising at law or in equity, known
or unknown, direct or indirect or derivative, actual or potential, existing or hereinafter arising, liquidated or unliquidated, matured or unmatured, absolute or contingent, foreseen or unforeseen, asserted or unasserted, disputed or undisputed,
secured or unsecured, reduced to judgment or otherwise, and including any rights to indemnity or contribution, in each case whether in law, equity, contract, tort, or arising under federal or state statutory or common law, or any other applicable
international foreign or domestic law, rule, statute, regulation, treaty, duty, requirement, or otherwise (collectively, “Claims”) that any Releasor (as defined herein) may have or claim to have against any of the Released
Parties, in each case, arising out of, relating to, or resulting from any act or omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever arising from or in connection with or relating to (i) any Notes
(including additional notes), the related guarantees thereof, and the Indenture (collectively, the “Note Documents”) in respect of such Notes and the transactions contemplated thereby, including any indebtedness or securities
incurred or issued by the Notes Parties thereunder, and the preparation, negotiation, pursuit, consideration, evaluation, consummation, implementation, and formulation of such documents and transactions (but with respect to each holder of Notes,
solely to the extent such Claims relate to the Notes held by such person or the Note Documents in respect of such Notes held by such person), (ii) the Notes Parties’
out-of-court restructuring or refinancing efforts, (iii) the distribution of property pursuant to the Transactions (as defined in the Offering Memorandum) or
(iv) the management or operation of the Notes Parties related to any of the foregoing, in each case taking place on or before the Early Settlement Date (collectively, the “Released Matters,” and such Claims,
the “Released Claims”); provided that nothing in this Section 13.17 will release or relieve any party from, nor will it constitute a covenant not to sue in respect of: (A) any post-Early
Settlement Date obligations of any party, including, without limitation, obligations in respect of the Notes and the Note Documents and the New Notes (including additional notes), the related guarantees thereof, the Notes Collateral Documents and
the New Notes Indentures (collectively, the “New Notes Documents”) or other document necessary to effectuate the Transactions (the “Transaction Documentation”), as applicable, and solely to the extent of any
rights or obligations therein that survive the Early Settlement Date or the Commitment Agreement (with respect to any Commitment Party, as defined therein); (B) any Claims against any party who fails to execute and deliver any documents or consents
required to be executed and delivered by such party in connection with the Commitment Agreement (with respect to any Commitment Party); (C) the access of any director or officer of any Notes Party to (i) directors or officers insurance
currently in place for the benefit of any such director or officer or (ii) any right, proceeds, or other benefit in connection with the same; (D) the rights or obligations of any Releasor pursuant to any employment agreement, non-compete agreement, separation agreement, bonus agreement, retention agreement, or any other employment-related letter or similar document entered into between any current or former employee and the Notes
Parties; (E) any rights or Claims to indemnification in the organizational or governing
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documents of the Notes Parties; (F) any intercompany Claims or interests between one Notes Party and another Notes Party or any of its Affiliates (as defined below), as applicable, or any
equity interests in any Notes Party, or (G) any Claim or liability to the extent resulting from the actual fraud or willful misconduct of such party (as determined in a final, nonappealable order by a court of competent jurisdiction), (H) any
Claims relating to investments, transactions or other matters other than the Released Matters; or (I) any right of indemnification or reimbursement in favor of the Trustee, or any holder of Notes (excluding Released Claims) against the Notes
Parties, the other holders of Notes, and their respective Related Parties arising under the Note Documents, as applicable.
For purposes
of this Section 13.17, with respect to each person, “Related Parties” means each Affiliate of such person, all funds managed or advised by it or by its Affiliates, and each of the successors, assigns,
partners, managers, directors, officers, members, shareholders, unitholders, equityholders (regardless of whether such interests are held directly or indirectly), limited partners, general partners, investment committee members, managing members,
principals, employees, agents, trustees, representatives, attorneys, accountants and each insurance, environmental, legal, investment, financial, and other advisors and other consultants, agents and
sub-advisors of or to such person and of or to such person’s Affiliates; provided, that with respect to any holder of Notes, none of the foregoing entities shall be deemed a Releasor unless such
holder of Notes has authority to bind such entity. For purposes of this Section 13.17, an “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. For purposes of the foregoing definition of “Affiliate,” “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with respect to any person, means 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. “Related Parties” shall not include the Trustee or any Affiliate of the Trustee.
(b) Notwithstanding anything to the contrary contained in this Section 13.17, each Released Party understands,
acknowledges and agrees that any holder of Notes (on its behalf or on behalf of its Related Parties), hereby releases and forever discharges, absolves and acquits the Notes Party Releasees solely in such person’s capacity as a holder of Notes,
and not in its individual capacity as an investor or holder of any other claim against or interest in the Notes Parties, or in any other capacity. Notwithstanding anything to the contrary in this Section 13.17, the Trustee
is not a Releasor.
(c) Each Notes Party, on its behalf and on behalf of its Related Parties and each holder of Notes, as applicable
(solely in its capacity as such), on behalf of themselves and their respective Related Parties (each, a “Releasor”), to the greatest extent authorized by applicable law, expressly agrees that the release contemplated by the
foregoing Section 13.17(a) extends to any and all rights granted under Section 1542 of the California Civil Code (“Section 1542”) or any analogous state law or federal law or
regulation are hereby expressly waived. Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
(d) Each Releasor understands that Section 1542, or a comparable statute, rule, regulation, or order of another jurisdiction, gives
such party the right not to release existing Claims of which such party is not aware, unless such party voluntarily chooses to waive this right. Having been so apprised, each Releasor, on its behalf and on behalf of its Related Parties, nevertheless
hereby voluntarily elects to waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for all Released Claims. Each Releasor, on its behalf and on behalf of its
Related Parties, to the greatest extent authorized by applicable law, acknowledges and agrees that the foregoing waiver is an essential and material term of the Second Supplemental Indenture and that, without such waiver, the other parties would not
have agreed to the terms of the Second Supplemental Indenture. Each Releasor, on its behalf and on behalf of its Related Parties, to the greatest extent authorized by applicable law, hereby represents to the other parties hereto that it understands
and acknowledges that it may hereafter discover facts and legal theories concerning such other parties or the subject matter hereof in
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addition to or different from those which it now believes to be true. Such Releasor understands and hereby agrees that the release set forth in this Section 13.17 shall
remain effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories. Such Releasor, on its behalf and on behalf of its Related Parties,
assumes the risk of any mistake of fact or applicable law with regard to any potential Claim released under this Section 13.17(d) or with regard to any of the facts that are now unknown to it relating thereto.
(e) Each Releasor agrees and acknowledges that the Claims which it is releasing under Section 13.17(a) include any
Claim which such Releasor does not know or suspect to exist in its favor at the time of the giving of the foregoing releases and covenants not to sue which, if known by it, might affect its decision regarding the releases and covenants not to sue
set forth herein. Each Releasor agrees and acknowledges that it might hereafter discover facts or documents in addition to or different from those which it now knows or believes to be true or exist with respect to the subject matter of any of the
Claims, but no Releasor in any capacity shall have any duty to disclose or provide any such facts or documents (whether material or immaterial, known or unknown, suspected or unsuspected, foreseen or unforeseen) to any other Releasor solely by
reason of the releases in Section 13.17(a), and each Releasor shall be deemed to have fully, finally and forever settled and released any and all Released Claims, whether known or unknown, concealed, suspected or
unsuspected, contingent or non-contingent, assertable directly or derivatively by class representative or individual, which now exist or heretofore have existed upon any theory of law (whether state, federal,
local, or foreign laws, including securities laws), contract, tort, or equity now existing or coming into existence in the future to the extent such Claims are actually released in Section 13.17(a).
(f) In the event that any third party, estate, trustee,
debtor-in-possession, creditor, creditors’ committee, or any other person or entity is successful in pursuing any Released Claim, or otherwise obtains liens or any
other right or benefit in, any Released Matter (or any Claim or cause of action, including any avoidance, preference, strong arm, or claw back action subsequently arising by operation of an insolvency or creditor rights law, that would have been a
Released Claim if the person or entity bringing such Claim or cause of action were party to the mutual release contained in this Section 13.17), or in connection with any bankruptcy or insolvency proceeding, is successful
in pursuing or receives, directly or indirectly, any funds, property, or other value on account of any Claim or cause of action against any Released Party that was released hereunder, in each case, each Releasor agrees that it shall (a) not
recover any funds, property, or other value received, awarded, or arising from settlement, judgment, or other resolution of such actual or threatened Claim or cause of action, (b) if it does receive such recovery, shall not commingle such
recovery with any of its other assets, and (c) shall promptly turnover and assign any such recoveries exclusively to, and hold them in trust exclusively for, such Notes Party Releasee or Holder Releasee, as applicable, provided that, in no
circumstance shall this Section 13.17(f) obligate any Releasor that would have otherwise recovered the full amount of a debt claim (including a
debtor-in-possession financing claim) in a bankruptcy, insolvency, or similar proceeding from other assets to turn over or assign such recoveries or proceeds of
litigation if such person’s receipt of the subject recoveries or proceeds was deemed to be in full or partial satisfaction of such claim (or, if applicable, an adequate protection claim derived from such debt claim that would have otherwise
recovered in full) such that the Releasor would otherwise be unable to seek repayment on such claim to obtain satisfaction in full from alternative sources. For purposes of this Section 13.17 any reference to any Notes
Party, Trustee or holder of Notes shall mean and include, as applicable, such Notes Party, Trustee or holder of Notes’ Affiliates and successors and assigns, including, without limitation, any estate, receiver, trustee, debtor-in-possession, debtor-in-possession financing lender, or other person or entity.
(g) Subject to Section 13.17(a), each of the Releasors hereby further agrees and covenants not to, and shall not,
and shall cause each of its Related Parties to not, individually or with any other person or entity file, commence, or prosecute, or assist or otherwise aid (unless legally compelled) any other person in the filing, commencement, or prosecution of
any charge, lawsuit, complaint or proceeding, whether directly, derivatively, or otherwise, with respect to any Released Matter against any Released Party. If any such proceeding is so commenced, then the Releasor commencing such proceeding (or
whose Related Party commences such proceeding) shall immediately cause it to be dismissed, and the Released Party or other released person or entity subject thereto shall have the right to be reimbursed by the party that commenced such proceeding
(or whose Related Party commenced such proceeding) for all reasonable fees, costs, and expenses incurred in connection therewith, without limitation of any other rights and remedies. For the avoidance of doubt, nothing herein shall constitute a
covenant not to sue in respect of any proceeding seeking a determination that a Claim falls within clause (G) of Section 13.17(a), and no such proceeding shall constitute a breach of this
Section 13.17(g).
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(h) Each Releasor understands, acknowledges, and agrees that, after the Early Settlement
Date, the releases set forth in this Section 13.17 may be pleaded as a full and complete defense to any Released Claim and may be used as a basis for an injunction against any action, suit, or other proceeding without any
need to post a bond or other indemnity which may be instituted, prosecuted, or attempted in breach of the provisions of such release. Each Releasor further agrees that no fact, event, circumstance, evidence, or transaction which could not be
asserted or which may hereafter be discovered shall affect in any manner the final, absolute, and unconditional nature of the releases set forth in this Section 13.17 and agrees that it shall turn over and return or cause
to be turned over and returned any recovery it receives in respect of a Released Matter (without creating any recourse, contribution, subrogation, or similar Claim, each of which is hereby waived) (other than as described in
Section 13.17(f)). The releases of the Releasors set forth in this Section 13.17 will be final releases, effective as of the Early Settlement Date, even if there may exist a mistake on the part of
any Releasor as to the extent and nature of the Claims of any such Releasor against any other party. Each of the Releasors acknowledges that it has access to adequate information regarding the terms hereof, and the scope and effect of the releases
contained in this Section 13.17, to make an informed and knowledgeable decision with regard to entering into the Second Supplemental Indenture and accepting New Notes. Each Releasor agrees and acknowledges that, no other
party (or any Related Party of any other party), in any capacity, has warranted or otherwise made any representations concerning any Released Matter or Released Claim (including any representation or warranty concerning the existence, non-existence, validity or invalidity of any Released Claim).
Section 2.2 Additional
Amendments.
(a) Any of the terms or provisions present in the Notes that relate to any of the provisions of the Indenture as amended
by this Second Supplemental Indenture shall also be amended, mutatis mutandis, so as to be consistent with the amendments made by this Second Supplemental Indenture.
(b) All definitions set forth in the Indenture or the Notes that relate to defined terms used solely in the terms or provisions deleted hereby
shall be deleted in their entirety with respect to the Indenture and the Notes, including all references thereto.
(c) Any and all
additional provisions of the Indenture and the Notes are hereby deemed to be amended to reflect the intentions of the Proposed Amendments provided for in this Second Supplemental Indenture.
(d) None of the Issuer, the Guarantors, the Trustee, or other parties to or beneficiaries of the Indenture shall have any rights, obligations
or liabilities under such sections or clauses deleted pursuant to clause (a) above, and such sections or clauses shall not be considered in determining whether a Default or Event of Default has occurred or whether the Issuer, the Guarantors or
the Trustee have observed, performed or complied with the provisions of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1
Effective Date of this Second Supplemental Indenture. Upon the execution and delivery of this Second Supplemental Indenture by the Issuer, the Guarantors and the Trustee, the Indenture shall be supplemented in accordance herewith; provided,
however, that the Proposed Amendments and the release set forth in Article II of this Second Supplemental Indenture shall not become operative and effective unless and until the Issuer has accepted for exchange the Notes satisfying the Requisite
Consents pursuant to the exchange offer and consent solicitation for the notes. The Issuer shall provide written notice (which may be via email) to the Trustee at such time this Second Supplemental Indenture becomes operative and effective;
provided, however, that failure to provide such notice will not impact the operativeness or effectiveness of this Second Supplemental Indenture.
Section 3.2 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 Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder
of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
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Section 3.3 Parties. Nothing expressed or mentioned herein is intended or shall
be construed to give any person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Second Supplemental Indenture or the Indenture or any provision herein or therein
contained.
Section 3.4 Governing Law. This Second Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 3.5 Severability. In case any provision in this Second Supplemental
Indenture 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 and such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability.
Section 3.6 The Trustee. The Trustee makes no representation or warranty as to
the validity or sufficiency of this Second Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
Section 3.7 Counterparts. The parties hereto may sign any number of copies of this Second Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmissions (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) shall constitute effective execution and delivery of this Supplemental Indenture as to the parties
hereto and may be used in lieu of the original Second Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall be deemed to be their original signatures for all
purposes.
Section 3.8 Headings. The headings of the Articles and the Sections in this Second Supplemental Indenture are for
convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
ACCENDRA HEALTH, INC.
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President, General Counsel and Corporate Secretary
[Signature Page to
Second Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
BARISTA ACQUISITION I, LLC
BARISTA ACQUISITION II, LLC
as Guarantors
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President, General Counsel and Corporate Secretary
APRIA HEALTHCARE GROUP LLC
APRIA HEALTHCARE LLC
APRIA HOLDCO LLC
APRIA, INC.
CPAP SLEEP STORE LLC
HEALTHY LIVING HOME MEDICAL LLC
as Guarantors
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer
BYRAM HEALTHCARE CENTERS, INC.
BYRAM HOLDINGS I, INC.
LOFTA,
as Guarantors
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer and President
O&M BYRAM HOLDINGS, GP,
as Guarantor
By:
BARISTA ACQUISITION I, LLC and
BARISTA ACQUISITION II, LLC
Its:
Partners
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer
[Signature Page to
Second Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
REGIONS BANK, as Trustee
/s/ Kristine Prall
Name:
Kristine Prall
Title:
Vice President
[Signature Page to
Second Supplemental Indenture]
EX-4.6
EX-4.6
Filename: d100115dex46.htm · Sequence: 5
EX-4.6
Exhibit 4.6
This SECOND SUPPLEMENTAL INDENTURE, (this “Second Supplemental Indenture”) dated as of June 9, 2026, by and among
Accendra Health, Inc., f/k/a Owens & Minor, Inc., as issuer (the “Issuer”), the parties that are signatories hereto as Guarantors (the “Guarantors” and each a “Guarantor”) and Regions
Bank, a banking institution organized and existing under the laws of the State of Alabama, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H:
WHEREAS, each of the Issuer, the Guarantors named therein and the Trustee have heretofore executed and delivered an indenture dated as of
March 29, 2022 (as amended, supplemented, waived or otherwise modified, including by the First Supplemental Indenture dated as of March 29, 2022, the “Indenture”), providing for the issuance of an aggregate principal
amount of $600.0 million of 6.625% Senior Notes due 2030 of the Issuer (the “Notes”);
WHEREAS, the Issuer has
solicited consents (the “Consent Solicitation”) from the holders of the Notes to certain proposed amendments to the Indenture, as set forth in Section 2.1 of this Second Supplemental Indenture (the “Proposed
Amendments”), in accordance with the terms and subject to the conditions set forth in that certain Confidential Offering Memorandum and Consent Solicitation Statement of the Issuer, dated May 22, 2026 (as amended, supplemented or
otherwise modified prior to the date hereof, the “Offering Memorandum”);
WHEREAS, pursuant to Section 9.2 of the
Indenture, with the consent of the holders of at least a majority in principal amount of all the outstanding Notes under the Indenture (the “Requisite Consents”) including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Notes, the Issuer, the Guarantors and the Trustee may amend or supplement the Indenture, any Guarantee and the Notes issued under the Indenture;
WHEREAS, the Issuer has received the Requisite Consents to the Proposed Amendments, as certified by an Officer’s Certificate attaching
the report of the Exchange Agent (as defined in the Offering Memorandum) as to the delivery of consents, delivered to the Trustee in connection with the execution and delivery of this Second Supplemental Indenture; and
WHEREAS, pursuant to Sections 9.2 and 9.6 of the Indenture, the Trustee is authorized to execute and deliver this Second Supplemental
Indenture, and the Issuer and Guarantors have requested that the Trustee execute and deliver this Second 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 hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used in this Second Supplemental Indenture, terms defined in the Indenture or in the preamble or
recitals hereto are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Second Supplemental Indenture refer to this Second Supplemental
Indenture as a whole and not to any particular Section hereof.
ARTICLE II
AGREEMENT TO THE PROPOSED AMENDMENTS TO THE INDENTURE
Section 2.1 Amendments.
(a) The Indenture is hereby amended to delete the following sections in their entirety, as well as the defined terms and other references
related to such sections to the extent such defined terms and other references are no longer used in the Indenture and, in the case of each such section, the phrase “[Intentionally Omitted]” is inserted in lieu thereof:
•
Section 3.2 (Limitation on Indebtedness);
1
•
Section 3.3 (Limitation on Restricted Payments);
•
Section 3.4 (Limitation on Restrictions on Distributions from Restricted Subsidiaries);
•
Section 3.5 (Limitation on Sales of Assets and Subsidiary Stock);
•
Section 3.6 (Limitation on Liens);
•
Section 3.7 (Limitation on Guarantees);
•
Section 3.8 (Limitation on Affiliate Transactions);
•
Section 3.9 (Change of Control);
•
Section 3.10 (Reports), other than the requirement to provide information required by Rule 144A(d)(4) and
clause (f) thereof;
•
Section 3.16 (Compliance Certificate);
•
Section 3.17 (Further Instruments and Acts);
•
Section 3.21 (Suspension of Certain Covenants on Achievement of Investment Grade Status);
•
Section 4.1(a)(2), (a)(3) and (a)(4) and (f) (Merger, Amalgamation and Consolidation);
•
Section 6.1(a)(3), (a)(4), (a)(5) and (a)(6) (Events of Default); and
•
Section 8.4(2), (3), (4), (5) and (7) (Conditions to Legal or Covenant Defeasance).
(b) The following definitions are hereby added to Section 1.1 of the Indenture:
“Commitment Agreement” means that certain commitment and consent letter, dated as of May 11, 2026, by and among the
Issuer and each other party thereto.
“Early Settlement Date” means the first date on which any New Notes are issued in
exchange for Notes pursuant to the terms of the Offering Memorandum.
“First Lien Intercreditor Agreement” means that
certain First Lien Pari Passu Intercreditor Agreement, dated as of March 29, 2022 as amended on or around the issue date of the New Notes, by and among the collateral agents for each of the credit agreements, the Issuer and the Guarantors.
“First Lien Notes” means the new 9.000% Senior Secured First Lien Notes due 2032 to be issued by the Issuer pursuant to the
terms of the Offering Memorandum.
“Junior Lien Intercreditor Agreement” means that certain Junior Lien Intercreditor
Agreement, to be entered into by the Second Lien Notes collateral agent, the First Lien Notes collateral agent and the collateral agents for each of the credit agreements.
“New Notes” means, collectively, the First Lien Notes and Second Lien Notes.
“New Notes Indentures” means the indentures governing the First Lien Notes due 2032 and the Second Lien Notes due 2033.
“Notes Collateral Documents” means the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, any
other intercreditor agreements entered into from time to time, the Notes security documents and the supplements thereto.
“Second
Lien Notes” means the new 9.750% Senior Secured Second Lien Notes due 2033 to be issued by the Issuer pursuant to the terms of the Offering Memorandum.
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(c) Section 13.17 of the Indenture is hereby deleted and replaced in its entirety with the
following:
Section 13.17 Mutual Release.
(a) It is hereby agreed that, effective upon the Early Settlement Date, to the greatest extent authorized by applicable law, in exchange for
good and valuable consideration, the adequacy of which is hereby confirmed, (x) each of the Issuer and the Guarantors (in their capacity as such, each, a “Notes Party,” and collectively, the “Notes
Parties”), on behalf of themselves and their Related Parties (as defined below), hereby releases and forever discharges, absolves and acquits (as the case may be) (i) each other
Notes Party and each of their respective Related Parties in their respective capacities as such and (ii) the Trustee, each holder of Notes (solely in its capacity as such), and each of their respective Related Parties in their respective
capacities as such (hereinafter, all of the above released parties in this clause (x)(ii) each in their respective capacities as such, collectively referred to as the “Holder Releasees”), and (y) each holder of the Notes
(solely in its capacity as such), on behalf of themselves and their Related Parties, hereby releases and forever discharges, absolves and acquits (as the case may be) each and all of the Notes Parties and the Trustee and each of their respective
Related Parties in their respective capacities as such (hereinafter, all of the above released parties in this clause (y) collectively referred to as the “Notes Party Releasees,” and together with the Holder Releasees, the
“Released Parties,” and each, a “Released Party”), and (z) each holder of Notes (solely in its capacity as such), on behalf of themselves and their Related Parties, hereby releases and forever discharges,
absolves and acquits (as the case may be) each other, from any and all claims, counterclaims, demands, damages, losses, costs, expenses (including attorneys’ fees), debts, suits, obligations, liabilities, cross-claims, interests, suits,
controversies, actions, proceedings, remedies, demands, causes of action, defenses, guaranties, judgments, rights, liabilities, offsets, powers, privileges, licenses, liens, franchises, and rights to reimbursement, subrogation, contribution,
indemnification, recoupment, or other payment (collectively, the “Losses”) of any kind or nature whatsoever, whether individually or collectively, arising on or prior to the date hereof, whether arising at law or in equity, known
or unknown, direct or indirect or derivative, actual or potential, existing or hereinafter arising, liquidated or unliquidated, matured or unmatured, absolute or contingent, foreseen or unforeseen, asserted or unasserted, disputed or undisputed,
secured or unsecured, reduced to judgment or otherwise, and including any rights to indemnity or contribution, in each case whether in law, equity, contract, tort, or arising under federal or state statutory or common law, or any other applicable
international foreign or domestic law, rule, statute, regulation, treaty, duty, requirement, or otherwise (collectively, “Claims”) that any Releasor (as defined herein) may have or claim to have against any of the Released
Parties, in each case, arising out of, relating to, or resulting from any act or omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever arising from or in connection with or relating to (i) any Notes
(including additional notes), the related guarantees thereof, and the Indenture (collectively, the “Note Documents”) in respect of such Notes and the transactions contemplated thereby, including any indebtedness or securities
incurred or issued by the Notes Parties thereunder, and the preparation, negotiation, pursuit, consideration, evaluation, consummation, implementation, and formulation of such documents and transactions (but with respect to each holder of Notes,
solely to the extent such Claims relate to the Notes held by such person or the Note Documents in respect of such Notes held by such person), (ii) the Notes Parties’
out-of-court restructuring or refinancing efforts, (iii) the distribution of property pursuant to the Transactions (as defined in the Offering Memorandum) or
(iv) the management or operation of the Notes Parties related to any of the foregoing, in each case taking place on or before the Early Settlement Date (collectively, the “Released Matters,” and such Claims,
the “Released Claims”); provided that nothing in this Section 13.17 will release or relieve any party from, nor will it constitute a covenant not to sue in respect of: (A) any post-Early
Settlement Date obligations of any party, including, without limitation, obligations in respect of the Notes and the Note Documents and the New Notes (including additional notes), the related guarantees thereof, the Notes Collateral Documents and
the New Notes Indentures (collectively, the “New Notes Documents”) or other document necessary to effectuate the Transactions (the “Transaction Documentation”), as applicable, and solely to the extent of any
rights or obligations therein that survive the Early Settlement Date or the Commitment Agreement (with respect to any Commitment Party, as defined therein); (B) any Claims against any party who fails to execute and deliver any documents or consents
required to be executed and delivered by such party in connection with the Commitment Agreement (with respect to any Commitment Party); (C) the access of any director or officer of any Notes Party to (i) directors or officers insurance
currently in place for the benefit of any such director or officer or (ii) any right, proceeds, or other benefit in connection with the same; (D) the rights or obligations of any Releasor pursuant to any employment agreement, non-compete agreement, separation agreement, bonus agreement, retention agreement, or any other employment-related letter or similar document entered into between any current or former employee and the Notes
Parties; (E) any rights or Claims to indemnification in the organizational or governing
3
documents of the Notes Parties; (F) any intercompany Claims or interests between one Notes Party and another Notes Party or any of its Affiliates (as defined below), as applicable, or any
equity interests in any Notes Party, or (G) any Claim or liability to the extent resulting from the actual fraud or willful misconduct of such party (as determined in a final, nonappealable order by a court of competent jurisdiction), (H) any
Claims relating to investments, transactions or other matters other than the Released Matters; or (I) any right of indemnification or reimbursement in favor of the Trustee, or any holder of Notes (excluding Released Claims) against the Notes
Parties, the other holders of Notes, and their respective Related Parties arising under the Note Documents, as applicable.
For purposes
of this Section 13.17, with respect to each person, “Related Parties” means each Affiliate of such person, all funds managed or advised by it or by its Affiliates, and each of the successors, assigns,
partners, managers, directors, officers, members, shareholders, unitholders, equityholders (regardless of whether such interests are held directly or indirectly), limited partners, general partners, investment committee members, managing members,
principals, employees, agents, trustees, representatives, attorneys, accountants and each insurance, environmental, legal, investment, financial, and other advisors and other consultants, agents and
sub-advisors of or to such person and of or to such person’s Affiliates; provided, that with respect to any holder of Notes, none of the foregoing entities shall be deemed a Releasor unless such
holder of Notes has authority to bind such entity. For purposes of this Section 13.17, an “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. For purposes of the foregoing definition of “Affiliate,” “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with respect to any person, means 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. “Related Parties” shall not include the Trustee or any Affiliate of the Trustee.
(b) Notwithstanding anything to the contrary contained in this Section 13.17, each Released Party understands,
acknowledges and agrees that any holder of Notes (on its behalf or on behalf of its Related Parties), hereby releases and forever discharges, absolves and acquits the Notes Party Releasees solely in such person’s capacity as a holder of Notes,
and not in its individual capacity as an investor or holder of any other claim against or interest in the Notes Parties, or in any other capacity. Notwithstanding anything to the contrary in this Section 13.17, the Trustee
is not a Releasor.
(c) Each Notes Party, on its behalf and on behalf of its Related Parties and each holder of Notes, as applicable
(solely in its capacity as such), on behalf of themselves and their respective Related Parties (each, a “Releasor”), to the greatest extent authorized by applicable law, expressly agrees that the release contemplated by the
foregoing Section 13.17(a) extends to any and all rights granted under Section 1542 of the California Civil Code (“Section 1542”) or any analogous state law or federal law or
regulation are hereby expressly waived. Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
(d) Each Releasor understands that Section 1542, or a comparable statute, rule, regulation, or order of another jurisdiction, gives
such party the right not to release existing Claims of which such party is not aware, unless such party voluntarily chooses to waive this right. Having been so apprised, each Releasor, on its behalf and on behalf of its Related Parties, nevertheless
hereby voluntarily elects to waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for all Released Claims. Each Releasor, on its behalf and on behalf of its
Related Parties, to the greatest extent authorized by applicable law, acknowledges and agrees that the foregoing waiver is an essential and material term of the Second Supplemental Indenture and that, without such waiver, the other parties would not
have agreed to the terms of the Second Supplemental Indenture. Each Releasor, on its behalf and on behalf of its Related Parties, to the greatest extent authorized by applicable law, hereby represents to the other parties hereto that it understands
and acknowledges that it may hereafter discover facts and legal theories concerning such other parties or the subject matter hereof in
4
addition to or different from those which it now believes to be true. Such Releasor understands and hereby agrees that the release set forth in this Section 13.17 shall
remain effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories. Such Releasor, on its behalf and on behalf of its Related Parties,
assumes the risk of any mistake of fact or applicable law with regard to any potential Claim released under this Section 13.17(d) or with regard to any of the facts that are now unknown to it relating thereto.
(e) Each Releasor agrees and acknowledges that the Claims which it is releasing under Section 13.17(a) include any
Claim which such Releasor does not know or suspect to exist in its favor at the time of the giving of the foregoing releases and covenants not to sue which, if known by it, might affect its decision regarding the releases and covenants not to sue
set forth herein. Each Releasor agrees and acknowledges that it might hereafter discover facts or documents in addition to or different from those which it now knows or believes to be true or exist with respect to the subject matter of any of the
Claims, but no Releasor in any capacity shall have any duty to disclose or provide any such facts or documents (whether material or immaterial, known or unknown, suspected or unsuspected, foreseen or unforeseen) to any other Releasor solely by
reason of the releases in Section 13.17(a), and each Releasor shall be deemed to have fully, finally and forever settled and released any and all Released Claims, whether known or unknown, concealed, suspected or
unsuspected, contingent or non-contingent, assertable directly or derivatively by class representative or individual, which now exist or heretofore have existed upon any theory of law (whether state, federal,
local, or foreign laws, including securities laws), contract, tort, or equity now existing or coming into existence in the future to the extent such Claims are actually released in Section 13.17(a).
(f) In the event that any third party, estate, trustee,
debtor-in-possession, creditor, creditors’ committee, or any other person or entity is successful in pursuing any Released Claim, or otherwise obtains liens or any
other right or benefit in, any Released Matter (or any Claim or cause of action, including any avoidance, preference, strong arm, or claw back action subsequently arising by operation of an insolvency or creditor rights law, that would have been a
Released Claim if the person or entity bringing such Claim or cause of action were party to the mutual release contained in this Section 13.17), or in connection with any bankruptcy or insolvency proceeding, is successful
in pursuing or receives, directly or indirectly, any funds, property, or other value on account of any Claim or cause of action against any Released Party that was released hereunder, in each case, each Releasor agrees that it shall (a) not
recover any funds, property, or other value received, awarded, or arising from settlement, judgment, or other resolution of such actual or threatened Claim or cause of action, (b) if it does receive such recovery, shall not commingle such
recovery with any of its other assets, and (c) shall promptly turnover and assign any such recoveries exclusively to, and hold them in trust exclusively for, such Notes Party Releasee or Holder Releasee, as applicable, provided that, in no
circumstance shall this Section 13.17(f) obligate any Releasor that would have otherwise recovered the full amount of a debt claim (including a
debtor-in-possession financing claim) in a bankruptcy, insolvency, or similar proceeding from other assets to turn over or assign such recoveries or proceeds of
litigation if such person’s receipt of the subject recoveries or proceeds was deemed to be in full or partial satisfaction of such claim (or, if applicable, an adequate protection claim derived from such debt claim that would have otherwise
recovered in full) such that the Releasor would otherwise be unable to seek repayment on such claim to obtain satisfaction in full from alternative sources. For purposes of this Section 13.17 any reference to any Notes
Party, Trustee or holder of Notes shall mean and include, as applicable, such Notes Party, Trustee or holder of Notes’ Affiliates and successors and assigns, including, without limitation, any estate, receiver, trustee, debtor-in-possession, debtor-in-possession financing lender, or other person or entity.
(g) Subject to Section 13.17(a), each of the Releasors hereby further agrees and covenants not to, and shall not,
and shall cause each of its Related Parties to not, individually or with any other person or entity file, commence, or prosecute, or assist or otherwise aid (unless legally compelled) any other person in the filing, commencement, or prosecution of
any charge, lawsuit, complaint or proceeding, whether directly, derivatively, or otherwise, with respect to any Released Matter against any Released Party. If any such proceeding is so commenced, then the Releasor commencing such proceeding (or
whose Related Party commences such proceeding) shall immediately cause it to be dismissed, and the Released Party or other released person or entity subject thereto shall have the right to be reimbursed by the party that commenced such proceeding
(or whose Related Party commenced such proceeding) for all reasonable fees, costs, and expenses incurred in connection therewith, without limitation of any other rights and remedies. For the avoidance of doubt, nothing herein shall constitute a
covenant not to sue in respect of any proceeding seeking a determination that a Claim falls within clause (G) of Section 13.17(a), and no such proceeding shall constitute a breach of this
Section 13.17(g).
5
(h) Each Releasor understands, acknowledges, and agrees that, after the Early Settlement
Date, the releases set forth in this Section 13.17 may be pleaded as a full and complete defense to any Released Claim and may be used as a basis for an injunction against any action, suit, or other proceeding without any
need to post a bond or other indemnity which may be instituted, prosecuted, or attempted in breach of the provisions of such release. Each Releasor further agrees that no fact, event, circumstance, evidence, or transaction which could not be
asserted or which may hereafter be discovered shall affect in any manner the final, absolute, and unconditional nature of the releases set forth in this Section 13.17 and agrees that it shall turn over and return or cause
to be turned over and returned any recovery it receives in respect of a Released Matter (without creating any recourse, contribution, subrogation, or similar Claim, each of which is hereby waived) (other than as described in
Section 13.17(f)). The releases of the Releasors set forth in this Section 13.17 will be final releases, effective as of the Early Settlement Date, even if there may exist a mistake on the part of
any Releasor as to the extent and nature of the Claims of any such Releasor against any other party. Each of the Releasors acknowledges that it has access to adequate information regarding the terms hereof, and the scope and effect of the releases
contained in this Section 13.17, to make an informed and knowledgeable decision with regard to entering into the Second Supplemental Indenture and accepting New Notes. Each Releasor agrees and acknowledges that, no other
party (or any Related Party of any other party), in any capacity, has warranted or otherwise made any representations concerning any Released Matter or Released Claim (including any representation or warranty concerning the existence, non-existence, validity or invalidity of any Released Claim).
Section 2.2 Additional
Amendments.
(a) Any of the terms or provisions present in the Notes that relate to any of the provisions of the Indenture as amended
by this Second Supplemental Indenture shall also be amended, mutatis mutandis, so as to be consistent with the amendments made by this Second Supplemental Indenture.
(b) All definitions set forth in the Indenture or the Notes that relate to defined terms used solely in the terms or provisions deleted hereby
shall be deleted in their entirety with respect to the Indenture and the Notes, including all references thereto.
(c) Any and all
additional provisions of the Indenture and the Notes are hereby deemed to be amended to reflect the intentions of the Proposed Amendments provided for in this Second Supplemental Indenture.
(d) None of the Issuer, the Guarantors, the Trustee, or other parties to or beneficiaries of the Indenture shall have any rights, obligations
or liabilities under such sections or clauses deleted pursuant to clause (a) above, and such sections or clauses shall not be considered in determining whether a Default or Event of Default has occurred or whether the Issuer, the Guarantors or
the Trustee have observed, performed or complied with the provisions of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1
Effective Date of this Second Supplemental Indenture. Upon the execution and delivery of this Second Supplemental Indenture by the Issuer, the Guarantors and the Trustee, the Indenture shall be supplemented in accordance herewith; provided,
however, that the Proposed Amendments and the release set forth in Article II of this Second Supplemental Indenture shall not become operative and effective unless and until the Issuer has accepted for exchange the Notes satisfying the Requisite
Consents pursuant to the exchange offer and consent solicitation for the notes. The Issuer shall provide written notice (which may be via email) to the Trustee at such time this Second Supplemental Indenture becomes operative and effective;
provided, however, that failure to provide such notice will not impact the operativeness or effectiveness of this Second Supplemental Indenture.
Section 3.2 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 Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder
of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
6
Section 3.3 Parties. Nothing expressed or mentioned herein is intended or shall
be construed to give any person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Second Supplemental Indenture or the Indenture or any provision herein or therein
contained.
Section 3.4 Governing Law. This Second Supplemental Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York.
Section 3.5 Severability. In case any provision in this Second Supplemental
Indenture 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 and such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability.
Section 3.6 The Trustee. The Trustee makes no representation or warranty as to
the validity or sufficiency of this Second Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
Section 3.7 Counterparts. The parties hereto may sign any number of copies of this Second Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. The exchange of copies of this Second Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmissions (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) shall constitute effective execution and delivery of this Supplemental Indenture as to the parties
hereto and may be used in lieu of the original Second Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall be deemed to be their original signatures for all
purposes.
Section 3.8 Headings. The headings of the Articles and the Sections in this Second Supplemental Indenture are for
convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[Signature pages follow]
7
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
ACCENDRA HEALTH, INC.
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President, General Counsel and Corporate Secretary
[Signature Page to
Second Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
BARISTA ACQUISITION I, LLC
BARISTA ACQUISITION II, LLC
as Guarantors
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President, General Counsel and Corporate Secretary
APRIA HEALTHCARE GROUP LLC
APRIA HEALTHCARE LLC
APRIA HOLDCO LLC
APRIA, INC.
CPAP SLEEP STORE LLC
HEALTHY LIVING HOME MEDICAL LLC
as Guarantors
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer
BYRAM HEALTHCARE CENTERS, INC.
BYRAM HOLDINGS I, INC.
LOFTA,
as Guarantors
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer and President
O&M BYRAM HOLDINGS, GP,
as Guarantor
By:
BARISTA ACQUISITION I, LLC and
BARISTA ACQUISITION II, LLC
Its:
Partners
By:
/s/ Perry A. Bernocchi
Name:
Perry A. Bernocchi
Title:
Chief Executive Officer
[Signature Page to
Second Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
REGIONS BANK, as Trustee
/s/ Kristine Prall
Name:
Kristine Prall
Title:
Vice President
[Signature Page to
Second Supplemental Indenture]
EX-10.1
EX-10.1
Filename: d100115dex101.htm · Sequence: 6
EX-10.1
Exhibit 10.1
AMENDMENT NO. 4 TO CREDIT AGREEMENT AND CONSENT
AMENDMENT NO. 4 TO CREDIT AGREEMENT AND CONSENT, dated as of June 15, 2026 (this “Amendment”), by and among ACCENDRA
HEALTH, INC. (f/k/a OWENS & MINOR, INC.), a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a
Virginia limited liability company (“Barista II”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation (“Byram”), APRIA, INC., a Delaware corporation (“Apria” and, together with the
Parent Borrower, Barista I, Barista II and Byram, collectively, the “Borrowers”), the other Loan Parties party hereto, each Lender party hereto (collectively, the “Consenting Lenders”) and BANK OF AMERICA, N.A.,
as the Administrative Agent and the Collateral Agent, a L/C Issuer and the Swing Line Lender.
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of March 10, 2021 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement” and, as amended by this Amendment, the “Credit Agreement”), by and among the Borrowers, the lending
institutions from time to time party thereto and Bank of America, N.A., as the Administrative Agent and the Collateral Agent (capitalized terms used but not defined herein have the meaning provided in the Credit Agreement);
WHEREAS, the Consenting Lenders constitute each Lender (including, for these purposes, each L/C Issuer and Swing Line Lender) under the
Existing Credit Agreement;
WHEREAS, the Borrowers have requested that, on the Amendment No. 4 Effective Date (as defined below),
each Consenting Lender (including, for these purposes, each L/C Issuer and Swing Line Lender) make available to them the Revolving Credit Commitments in an initial aggregate principal amount of $300,000,000, and each Consenting Lender has agreed and
is willing to do so on the terms set forth in the Credit Agreement; and
WHEREAS, pursuant to Section 10.01 of the Existing Credit
Agreement, the Borrowers have requested that the Administrative Agent and the Consenting Lenders consent to the Consent (as defined below) and amend certain provisions of the Existing Credit Agreement as set forth herein and, subject to the terms
and conditions hereof, the Administrative Agent and the Consenting Lenders are willing to do so.
NOW, THEREFORE, in consideration of the
premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT AND CONSENT AND
AMENDMENT NO. 4 REVOLVING CREDIT FACILITY.
1.1
Amendment No. 4 to the Credit Agreement. Effective as of the Amendment No. 4 Effective Date
and subject to the satisfaction (or waiver) of the conditions precedent set forth in Section 2 hereof: (a) the Credit Agreement is amended as set forth in Exhibit A attached hereto, such that all of the newly inserted
double-underlined provisions therein (indicated textually in the same manner as the following example: double-underlined text) shall be deemed to be inserted
and all of the stricken text therein (indicated textually in the same manner as the following example: stricken text) shall be deemed
to be deleted therefrom, (b) Schedules 1.01B, 2.01 and 2.03(a)(ii) are hereby deleted in their entirety, (c) Schedules 1.01C, 1.01D, 2.03(a)(i), 5.11, 7.01(b), 7.02, 7.03(g), 7.07 and
10.02 to the Credit Agreement are hereby amended and replaced in their entirety with Schedules 1.01C, 1.01D, 2.03(a)(i), 5.11, 7.01(b), 7.02, 7.03(g), 7.07 and 10.02 attached hereto in Exhibit B, (d) Exhibits F, G and H to the Credit
Agreement are hereby deleted in their entirety, (e) Exhibits A-1, A-2, B, C, D, E, I and L to the Credit Agreement are hereby amended and replaced in their entirety with Exhibits A-1, A-2, B, C, D, E, I and L attached hereto in Exhibit
C, (f) Exhibit M attached hereto in Exhibit C is hereby inserted as Exhibit M to the Credit Agreement and (g) Schedules I, II, III and IV to the Security Agreement are hereby amended and replaced in their entirety with Schedules
I, II, III, and IV attached hereto in Exhibit D.
1.2
Consent. Effective as of the Amendment No. 4 Effective Date and subject to the satisfaction or
waiver of the conditions precedent set forth in Section 2 hereof, the Consenting Lenders consent to (collectively, the “Consent”):
(a)
the entry into the First Lien Intercreditor Agreement (as set forth in Exhibit E attached hereto) by the
Collateral Agent; and
(b)
the entry into the Second Lien Intercreditor Agreement (as set forth in Exhibit F attached hereto) by
the Collateral Agent.
1.3
Amendment No. 4 Revolving Credit Facility. Each of the parties hereto hereby agrees that, as of the
Amendment No. 4 Effective Date (but immediately after giving effect to the amendments and consents described in Section 1.1 and Section 1.2 hereof), the Revolving Credit Commitments under the Existing Credit Agreement
shall be irrevocably cancelled (with any advance notice or other condition precedent or other requirement to the effectiveness being waived hereby), each Consenting Lender hereby commits to provide to the Borrowers a Revolving Credit Commitment and
to issue Letters of Credit, as applicable, in the amount set forth opposite such Consenting Lender’s name under the caption “Revolving Credit Commitment” and “L/C Commitment” on Schedule I hereto, in respect of
the Amendment No. 4 Revolving Credit Facility, and as a result of a cashless exchange effected hereby, all Revolving Credit Exposure (as defined under the Existing Credit Agreement) that is not otherwise prepaid on the Amendment No. 4
Effective Date (such prepayment, the “Revolving Credit Facility Prepayment”) shall constitute Revolving Credit Exposure outstanding under the Credit Agreement pursuant to the Revolving Credit Commitment (as defined in the Credit
Agreement) and the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all of the Consenting Lenders participate in each Existing Letter of Credit, Swing Line Loan and L/C Advance, if any, pro rata on the
basis of their respective Revolving Credit Commitments after giving effect to the Amendment No. 4 Effective Date.
SECTION 2. CONDITIONS TO EFFECTIVENESS.
2.1
Amendment No. 4 Signing Date. This Amendment shall become effective on the date (the
“Signing Date”) when the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment, duly executed by each of the Borrowers, the other Loan Parties party hereto and the Consenting
Lenders.
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2.2
Amendment No. 4 Effective Date. The amendments, consent and establishment of the Amendment
No. 4 Revolving Credit Facility described in Section 1 shall become effective upon the satisfaction (or waiver by the Required Lenders) of the following conditions precedent (such date, the “Amendment No. 4 Effective
Date”):
(a)
Intercreditor Agreements. The Administrative Agent (or its counsel) shall have received a counterpart
signature page of the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement, duly executed by each of the Borrowers and the other Loan Parties party hereto.
(b)
Officer’s Certificate. The Administrative Agent (or its counsel) shall have received such
certificates, copies of Organization Documents of the Loan Parties, resolutions or other action and incumbency certificates 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.
(c)
Opinions. The Administrative Agent (or its counsel) shall have received Legal opinions, in customary
form, from (i) Kirkland & Ellis LLP, as New York counsel to the Loan Parties, (ii) Gordon Rees Scully Mansukhani, LLP, as special New Jersey counsel to the Loan Parties, and (iii) Hunton Andrews Kurth LLP, as special Virginia
counsel to the Loan Parties.
(d)
Solvency Certificate. The Administrative Agent (or its counsel) shall have received a certificate
attesting to the Solvency of the Parent Borrower and its Subsidiaries (on a consolidated basis) on the Amendment No. 4 Effective Date after giving effect to the Amendment No. 4 Transactions, from Parent Borrower’s chief financial
officer, in his capacity as such.
(e)
Fees and Expenses. Substantially concurrently with the Amendment No. 4 Effective Date, the Parent
Borrower shall have paid all fees and other amounts due and payable to the Administrative Agent and the Consenting Lenders under (i) that certain Fee Letter, dated as of the date hereof, between the Parent Borrower and the Administrative Agent,
(ii) the Existing Credit Agreement or (iii) that certain Commitment Letter, dated as of May 11, 2026, between, inter alios, the Parent Borrower and the Consenting Lenders in connection with this Amendment, to the extent
invoiced at least one (1) Business Day prior to the Amendment No. 4 Effective Date (unless otherwise agreed with the Parent Borrower).
(f)
Event of Default. No Event of Default shall exist and be continuing immediately after giving effect to
this Amendment.
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(g)
Early Settlement Date. Substantially concurrently with the Amendment No. 4 Effective Date, the
Early Settlement Date shall have occurred.
(h)
Prepayment. Substantially concurrently with the Amendment No. 4 Effective Date, the Administrative
Agent shall have received evidence that (i) the Term A-1 Term Facility (as defined in the Term Loan Credit Agreement prior to the Amendment No. 4 Effective Date) shall have been prepaid in full and (ii) the Amendment No. 2
Effective Date (as defined in the Term Loan Credit Agreement) shall have occurred.
(i)
KYC. The Administrative Agent and the Consenting Lenders shall have received at least three
(3) Business Days prior to the Amendment No. 4 Effective Date all documentation and other information about the Borrowers and the Guarantors as has been reasonably requested in writing at least ten (10) Business Days prior to the
Amendment No. 4 Effective Date by the Administrative Agent and the Consenting Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including without limitation the USA PATRIOT Act.
(j)
Representations and Warranties. The representations and warranties of the Borrowers and each other Loan
Party contained in Article V of the Credit Agreement shall be true and correct in all material respects as of the Amendment No. 4 Effective Date; provided that, to the extent that such representations and warranties
specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,”
“Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(k)
Closing Certificate. A certificate signed by a Responsible Officer of the Parent Borrower certifying
that the conditions set forth in clauses (f) and (j) above are satisfied.
(l)
Consolidated Cash Balance. Immediately after giving effect to the Amendment No. 4 Transactions, the
Consolidated Cash Balance will not exceed the Consolidated Cash Balance Limit; provided, that, the Consolidated Cash Balance shall not include any cash or Cash Equivalents reasonably expected to be applied (other than principal payments of
Indebtedness for borrowed money at their final stated maturity) within five (5) Business Days after the Amendment No. 4 Effective Date (as determined by the Parent Borrower in good faith) for the purpose of satisfying this condition in
Section 2.2(l).
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SECTION 3. REPRESENTATIONS AND WARRANTIES. By its execution of this Amendment, each Loan
Party hereby represents and warrants to the Administrative Agent and each Consenting Lender that the execution, delivery and performance by each Loan Party of this Amendment (a) have been duly authorized by all necessary corporate or other
organizational action and (b) do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or require any payment to be made under
(A) any Contractual Obligation exceeding the Threshold Amount to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any material order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or its property is subject, (iii) result in the creation of any Lien (other than as permitted under the Loan Documents) or (iv) violate any material Law; except (in the case
of clauses (b)(ii) and (b)(iv)), to the extent that such conflict, breach, contravention, payment or violation could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 4. REAFFIRMATION. As of the Amendment No. 4 Effective Date, each Loan Party hereby consents to the terms of this Amendment and
confirms that each Loan Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Loan Documents the
payment and performance of all “Obligations” under each of the Loan Documents to which it is a party (in each case as such terms are defined in the applicable Loan Document). As of the Amendment No. 4 Effective Date, each Loan Party
acknowledges and agrees that any of the Loan Documents (as they may be modified by this Amendment) to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and
enforceable, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity, and shall not be impaired or limited by the execution
or effectiveness of this Amendment other than to the extent expressly contemplated hereby.
SECTION 5. EFFECT OF THIS AMENDMENT. Except
as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document,
and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, all of which are
ratified and affirmed in all respects and shall continue in full force and effect. This Amendment shall not constitute a novation of the Credit Agreement as in effect immediately prior to giving effect hereto or any of the Loan Documents. For the
avoidance of doubt, on and after the Amendment No. 4 Effective Date, this Amendment shall for all purposes constitute a Loan Document. On and after the Amendment No. 4 Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
SECTION 6. AMENDMENT, MODIFICATION AND WAIVER. This Amendment may not be amended, modified or waived except by an instrument or instruments
in writing signed and delivered on behalf of each of the parties hereto.
SECTION 7. ENTIRE AGREEMENT. This Amendment, the Credit
Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or
any of them with respect to the subject matter hereof.
5
SECTION 8. GOVERNING LAW, ETC. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 10.14 and 10.15 of the Credit Agreement are incorporated herein and apply to this Amendment mutatis
mutandis.
SECTION 9. SEVERABILITY. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10. COUNTERPARTS. This Amendment may be executed in counterparts, each
of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 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. The words “execution,” “signed,” “signature,” and words of similar import in any Loan Document or any notice, certificate,
document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as
manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act of 2000, the New York
State Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Amendment.
SECTION 11. MUTUAL RELEASE.
(a) It is hereby agreed that, effective upon the Amendment No. 4 Effective Date, to the greatest extent authorized by
applicable law, in exchange for good and valuable consideration, the adequacy of which is hereby confirmed, (x) each Loan Party, in their capacity as such on behalf of themselves and their Related Parties,1
1
For purposes of this Section 11, with respect to each person, “Related Parties”
means each Affiliate (as defined herein) of such person, all funds managed or advised by it or by its Affiliates, and each of the successors, assigns, partners, managers, directors, officers, members, shareholders, unitholders, equityholders
(regardless of whether such interests are held directly or indirectly), limited partners, general partners, investment committee members, managing members, principals, employees, agents, trustees, representatives, attorneys, accountants and each
insurance, environmental, legal, investment, financial, and other advisors and other consultants, agents and sub-advisors of or to such person and of or to such person’s Affiliates; provided, that with respect to any Consenting Lender,
none of the foregoing entities shall be deemed a Releasing Party unless such Consenting Lender has authority to bind such entity. For purposes of this Section 11, an “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. For purposes of the foregoing definition of “Affiliate,” “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any person, means 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. Notwithstanding anything to the contrary in this Amendment, “Related Parties” shall not
include the Existing Agent (as defined herein) or any Affiliate of the Existing Agent, branches or Other Units of any Consenting Lender.
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hereby releases and forever discharges, absolves, and acquits (as the case may be) (i) each other Loan Party and each of their respective Related Parties in their respective capacities as
such and (ii) the Administrative Agent and the Collateral Agent (each in its capacity as such, the “Existing Agent” and collectively, the “Existing Agents”), each Consenting Lender, and each of their
respective Related Parties in their respective capacities as such (hereinafter, all of the above released parties in this clause (x)(ii) each in their respective capacities as such, collectively referred to as the “Agent/Lender
Releasees”), and (y) each Consenting Lender on behalf of themselves and their Related Parties, hereby releases and forever discharges, absolves, and acquits (as the case may be) each and all of the Loan Parties and their respective
Related Parties in their respective capacities as such (hereinafter, all of the above released parties in this clause (y) collectively referred to as the “Loan Party Releasees”, and together with the Agent/Lender Releasees,
the “Released Parties”, and each, a “Released Party”), and (z) each Consenting Lender, on behalf of themselves and their Related Parties, hereby releases and forever discharges, absolves, and acquits (as
the case may be) each other, from any and all claims, counterclaims, demands, damages, losses, costs, expenses (including attorneys’ fees), debts, suits, obligations, liabilities, cross-claims, interests, suits, controversies, actions,
proceedings, remedies, demands, causes of action, defenses, guaranties, judgments, rights, liabilities, offsets, powers, privileges, licenses, liens, franchises, and rights to reimbursement, subrogation, contribution, indemnification, recoupment, or
other payment (collectively, the “Losses”) of any kind or nature whatsoever, whether individually or collectively, arising on or prior to the date hereof, whether arising at law or in equity, known or unknown, direct or indirect
or derivative, actual or potential, existing or hereinafter arising, liquidated or unliquidated, matured or unmatured, absolute or contingent, foreseen or unforeseen, asserted or unasserted, disputed or undisputed, secured or unsecured, reduced to
judgment or otherwise, and including any rights to indemnity or contribution, in each case whether in law, equity, contract, tort, or arising under federal or state statutory or common law, or any other applicable international foreign or domestic
law, rule, statute, regulation, treaty, duty, requirement, or otherwise (collectively, “Claims”) that any Releasor (as defined herein) may have or claim to have against any of the Released Parties, in each case, arising out of,
relating to, or resulting from any act or omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever arising from or in connection with or relating to (i) the Loans (as defined in the Existing Credit
Agreement prior to giving effect to this Amendment) (the “Existing Revolving Loans”) or, in each case, any Loan Documents in respect of Existing Revolving Loans and the transactions contemplated thereby, including any indebtedness
or securities incurred or issued by the Loan Parties thereunder, and the preparation, negotiation, pursuit, consideration, evaluation, consummation, implementation, and formulation of such documents and transactions (but with respect to each
Consenting Lender, solely to the extent such Claims relate to the Existing Revolving Loans held by such Consenting Lender or Loan Documents in respect of such Existing Revolving Loans held by such Consenting Lender), (ii) the Loan
Parties’ out-of-court restructuring or refinancing efforts, (iii) the distribution of property pursuant to the Transactions or (iv) the management or operation of the Loan Parties related to any of the foregoing, in each
7
case taking place on or before the Amendment No. 4 Effective Date (collectively, the “Released Matters,” and such Claims, the “Released Claims”);
provided that nothing in this Section 11 shall release or relieve any party from, nor shall it constitute a covenant not to sue in respect of: (A) any post-Amendment No. 4 Effective Date obligations of any party,
including, without limitation, obligations in respect of the Existing Revolving Loans and the other Loan Documents in respect of such Existing Revolving Loans, as applicable, and solely to the extent of any rights or obligations therein that survive
the Amendment No. 4 Effective Date; (B) any Claims against any party who fails to execute and deliver any documents or consents required to be executed and delivered by such party in connection with this Amendment; (C) the access of
any director or officer of any Loan Party to (i) directors or officers insurance currently in place for the benefit of any such director or officer or (ii) any right, proceeds, or other benefit in connection with the same; (D) the
rights or obligations of any Releasor pursuant to any employment agreement, non-compete agreement, separation agreement, bonus agreement, retention agreement, or any other employment-related letter or similar
document entered into between any current or former employee and the Loan Parties; (E) any rights or Claims to indemnification in the organizational or governing documents of the Loan Parties; (F) any intercompany Claims or interests
between one Loan Party and another Loan Party or any of its Affiliates, as applicable, or any equity interests in any Loan Party, or (G) any Claim or liability to the extent resulting from the actual fraud or willful misconduct of such party
(as determined in a final, nonappealable order by a court of competent jurisdiction), (H) any Claims relating to investments, transactions or other matters other than the Released Matters; or (I) any right of indemnification or
reimbursement in favor of the Existing Agents or Consenting Lenders (with respect to the Consenting Lenders, excluding Released Claims) against the Loan Parties, the Consenting Lenders, and their respective Related Parties arising under the Credit
Agreement and the Loan Documents, as applicable.
(b) Notwithstanding anything to the contrary contained in this
Section 11, each Released Party understands, acknowledges and agrees that any Consenting Lender (on its behalf or on behalf of its Related Parties), releases and forever discharges the Loan Party Releasees solely in such Consenting
Lenders’ capacity and not in its individual capacity as an investor or holder of any other claim against or interest in the Loan Parties, or in any other capacity. The Loan Parties understand that the Consenting Lenders are engaged in a wide
range of financial services and businesses, and in furtherance of the foregoing, the Loan Parties acknowledge and agree that the obligations set forth in this Amendment shall only apply to the trading desk(s), fund(s), account(s), business group(s),
and/or unit(s) of such Consenting Lender, that principally manage and/or supervise each such Consenting Lender’s investment in the Loan Parties and shall not apply to any other trading desk(s), fund(s), account(s), business group(s), and/or
unit(s) therein of such Consenting Lender so long as they are not acting at the direction or for the benefit of such Consenting Lender or in connection with such Consenting Lender’s investment in the Loan Parties, as applicable (each, an
“Other Unit” and, collectively, such “Other Units”). For the avoidance of doubt and notwithstanding anything to the contrary in this Amendment, no Other Unit shall be a Consenting Lender nor deemed an Affiliate, or
Related Party of a Consenting Lender to the extent not specifically identified on its signature page. Notwithstanding anything to the contrary in this Amendment, the Existing Agents are not Releasors.
8
(c) Each Loan Party, on its behalf and on behalf of its Related Parties, and
each Consenting Lender, on behalf of themselves and their respective Related Parties (each, a “Releasor”), to the greatest extent authorized by applicable law, hereby expressly agrees that the release contemplated by the foregoing
Section 11(a) extends to any and all rights granted under Section 1542 of the California Civil Code (“Section 1542”) or any analogous state law or federal law or regulation are hereby expressly waived.
Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
(d) Each Releasor understands that Section 1542, or a comparable statute, rule, regulation, or order of another
jurisdiction, gives such party the right not to release existing Claims of which such party is not aware, unless such party voluntarily chooses to waive this right. Having been so apprised, each Releasor, on its behalf and on behalf of its Related
Parties, nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for all Released Claims. Each Releasor, on its
behalf and on behalf of its Related Parties, to the greatest extent authorized by applicable law, acknowledges and agrees that the foregoing waiver is an essential and material term of this Amendment and that, without such waiver, the other parties
would not have agreed to the terms of this Amendment. Each Releasor, on its behalf and on behalf of its Related Parties, to the greatest extent authorized by applicable law, hereby represents to the other parties hereto that it understands and
acknowledges that it may hereafter discover facts and legal theories concerning such other parties or the subject matter hereof in addition to or different from those which it now believes to be true. Such Releasor understands and hereby agrees that
the release set forth in this Section 11 shall remain effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories. Such
Releasor, on its behalf and on behalf of its Related Parties, assumes the risk of any mistake of fact or applicable law with regard to any potential Claim released under this Section 11(a) or with regard to any of the facts that are now
unknown to it relating thereto.
(e) Each Releasor agrees and acknowledges that the Claims which it is releasing under
Section 11(a) include any Claim which such Releasor does not know or suspect to exist in its favor at the time of the giving of the foregoing releases and covenants not to sue which, if known by it, might affect its decision regarding
the releases and covenants not to sue set forth herein. Each Releasor agrees and acknowledges that it might hereafter discover facts or documents in addition to or different from those which it now knows or believes to be true or exist with respect
to the subject matter of any of the Claims, but no Releasor in any capacity shall have any duty to disclose or provide any such facts or documents (whether material or immaterial, known or unknown, suspected or unsuspected, foreseen or unforeseen)
to any other Releasor solely by reason of the releases in Section 11(a), and each Releasor shall be deemed to have fully, finally and forever settled and released any and all Released Claims, whether known or unknown, concealed,
suspected or unsuspected,
9
contingent or non-contingent, assertable directly or derivatively by class representative or individual, which now exist or heretofore have existed upon any theory of law (whether state, federal,
local, or foreign laws, including securities laws), contract, tort, or equity now existing or coming into existence in the future to the extent such Claims are actually released in Section 11(a). Notwithstanding the foregoing, nothing
contained herein is intended to impair or otherwise derogate from any of the representations, warranties or covenants expressly set forth in this Amendment or any of the Loan Documents in respect of the Amendment No. 4 Revolving Credit Facility
or limit or otherwise excuse any obligation of any Loan Party under the Credit Agreement, the Loans (as defined in the Credit Agreement after giving effect to this Amendment) under the Amendment No. 4 Revolving Credit Facility or any of the
Loan Documents in connection therewith or any of the rights of the lenders under such respective documents as of the date of this Amendment.
(f) In the event that any third party, estate, trustee, debtor-in-possession, creditor, creditors’ committee, or any
other person or entity is successful in pursuing any Released Claim, or otherwise obtains liens or any other right or benefit in, any Released Matter (or any Claim or cause of action, including any avoidance, preference, strong arm, or claw back
action subsequently arising by operation of an insolvency or creditor rights law, that would have been a Released Claim if the person or entity bringing such Claim or cause of action were party to the mutual release contained in this
Section 11), or in connection with any bankruptcy or insolvency proceeding, is successful in pursuing or receives, directly or indirectly, any funds, property, or other value on account of any Claim or cause of action against any
Released Party that was released hereunder, in each case, each Releasor agrees that it shall (a) not recover any funds, property, or other value received, awarded, or arising from settlement, judgment, or other resolution of such actual or
threatened Claim or cause of action, (b) if it does receive such recovery, shall not commingle such recovery with any of its other assets, and (c) shall promptly turnover and assign any such recoveries exclusively to, and hold them in
trust exclusively for, such Released Party, as applicable, provided that, in no circumstance shall this Section 11(f) obligate any Releasor or Existing Agent that would have otherwise recovered the full amount of a debt claim (including
a debtor-in-possession financing claim) in a bankruptcy, insolvency, or similar proceeding from other assets to turn over or assign such recoveries or proceeds of litigation if such person’s receipt of the subject recoveries or proceeds was
deemed to be in full or partial satisfaction of such claim (or, if applicable, an adequate protection claim derived from such debt claim that would have otherwise recovered in full) such that the Releasor or Existing Agent (as applicable) would
otherwise be unable to seek repayment on such claim to obtain satisfaction in full from alternative sources. For purposes of this Section 11, any reference to any Loan Party, Existing Agent or Consenting Lender shall mean and include, as
applicable, such Loan Party, Existing Agent or Consenting Lender’s Affiliates and successors and assigns, including, without limitation, any estate, receiver, trustee, debtor-in-possession, debtor-in-possession financing lender, or other
person or entity.
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(g) Subject to Section 11(a), each of the Releasors hereby
further agrees and covenants not to, and shall not, and shall cause each of its Related Parties to not, individually or with any other person or entity file, commence, or prosecute, or assist or otherwise aid (unless legally compelled) any other
person in the filing, commencement, or prosecution of any charge, lawsuit, complaint or proceeding, whether directly, derivatively, or otherwise, with respect to any Released Matter against any Released Party. If any such proceeding is so commenced,
then the Releasor commencing such proceeding (or whose Related Party commences such proceeding) shall immediately cause it to be dismissed, and the Released Party or other released person or entity subject thereto shall have the right to be
reimbursed by the party that commenced such proceeding (or whose Related Party commenced such proceeding) for all reasonable fees, costs, and expenses incurred in connection therewith, without limitation of any other rights and remedies. For the
avoidance of doubt, nothing herein shall constitute a covenant not to sue in respect of any proceeding seeking a determination that a Claim falls within clause (G) of Section 11(a), and no such proceeding shall constitute a breach
of this Section 11(g).
(h) Each Releasor understands, acknowledges, and agrees that, after the Amendment
No. 4 Effective Date, the releases set forth in this Section 11 may be pleaded as a full and complete defense to any Released Claim and may be used as a basis for an injunction against any action, suit, or other proceeding without
any need to post a bond or other indemnity which may be instituted, prosecuted, or attempted in breach of the provisions of such release. Each Releasor further agrees that no fact, event, circumstance, evidence, or transaction which could not be
asserted or which may hereafter be discovered shall affect in any manner the final, absolute, and unconditional nature of the releases set forth in this Section 11 and agrees that it shall turn over and return or cause to be turned over
and returned any recovery it receives in respect of a Released Matter (without creating any recourse, contribution, subrogation, or similar Claim, each of which is hereby waived) (other than as described in Section 11(f)). The releases
of the Releasors set forth in this Section 11 are final releases, effective as of the Amendment No. 4 Effective Date, even if there may exist a mistake on the part of any Releasor as to the extent and nature of the Claims of any
such Releasor against any other party. Each of the Releasors acknowledges that it has access to adequate information regarding the terms hereof, and the scope and effect of the releases contained in this Section 11, to make an informed
and knowledgeable decision with regard to entering into this Amendment. Each Releasor agrees and acknowledges that, except as expressly set forth in this Amendment, no other party (or any Related Party of any other party), in any capacity, has
warranted or otherwise made any representations concerning any Released Matter or Released Claim (including any representation or warranty concerning the existence, non-existence, validity or invalidity of any Released Claim).
SECTION 12. REVOLVING CREDIT FACILITY PREPAYMENT. Each Consenting Lender hereby waives any breakage loss, costs or other amounts due under
Section 3.04 of the Existing Credit Agreement in connection with the Revolving Credit Facility Prepayment.
SECTION 13. POSSESSORY
COLLATERAL. The Administrative Agent and the Collateral Agent consent to the delivery of the Possessory Collateral (as defined in the First Lien Pari Passu Intercreditor Agreement and the Junior Lien Intercreditor Agreement) set forth on
Exhibit G within the time periods set forth therein.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to
execute and deliver this Amendment as of the date first set forth above.
ACCENDRA HEALTH, INC.,
as
the Parent Borrower
By:
/s/ Heath H. Galloway
Name: Heath H. Galloway
Title: Executive Vice President
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC,
APRIA, INC.,
each as a Borrower
By:
/s/ Heath H. Galloway
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
/s/ Michelle Knowles
Name: Michelle Knowles
Title: Secretary
[Huskies: Signature Page to Amendment No. 4 to Credit Agreement and Consent]
BYRAM HOLDINGS I, INC.,
as a Guarantor
By:
/s/ Michelle Knowles
Name: Michelle Knowles
Title: Secretary
O&M BYRAM HOLDINGS, GP,
as a Guarantor
By:
Barista Acquisition I, LLC; and
Barista Acquisition II, LLC
Its:
Partners
By:
/s/ Heath H. Galloway
Name: Heath H. Galloway
Title: Executive Vice President
APRIA HEALTHCARE GROUP LLC,
APRIA HEALTHCARE LLC,
APRIA HOLDCO LLC,
CPAP SLEEP STORE LLC,
HEALTHY LIVING HOME MEDICAL LLC,
LOFTA,
each as a
Guarantor
By:
/s/ Heath H. Galloway
Name: Heath H. Galloway
Title: Executive Vice President
[Huskies: Signature Page to Amendment No. 4 to Credit Agreement and Consent]
[•],
as a Consenting Lender [and L/C Issuer]
By:
Name:
Title:
[Huskies: Signature Page to Amendment No. 4 to Credit Agreement and Consent]
BANK OF AMERICA, N.A.,
as a Consenting Lender, the Administrative Agent and the Collateral Agent, as L/C Issuer and Swing Line Lender
By:
Name:
Title:
[Huskies: Signature Page to Amendment No. 4 to Credit Agreement and Consent]
EXHIBIT A
to Amendment No. 4 to Credit Agreement and Consent
Amendments to the Credit Agreement
[See attached.]
Annex AConformed Through Amendment No. 4
Deal CUSIP: 69072EAG2
Facility CUSIP: 69072EAH0
CREDIT AGREEMENT
Dated as of March 10, 2021
as amended by
that certain
Amendment No. 1 to Credit Agreement, dated as of February 22, 2022,
that certain Joinder to Credit Agreement, Amendment No. 2 to Credit
Agreement,
Amendment No. 1 to Security
Agreement and Amendment No. 1 to Guaranty, dated as of March 29, 2022,
that certain
Amendment No. 3 to Credit Agreement, dated as of November 8, 2024
and that certain Amendment No. 4 to Credit Agreement dated as of June 15, 2026
among
ACCENDRA
HEALTH, INC.
(F/K/A OWENS & MINOR, INC.),
as the Parent Borrower,
OWENS & MINOR DISTRIBUTION, INC.,
OWENS & MINOR MEDICAL, INC.,
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC
O&M HALYARD, INC.,
BYRAM HEALTHCARE CENTERS, INC.,
and
APRIA, INC.
as U.S. Borrowers,
CERTAIN OTHER
BORROWERS AS MAY BECOME PARTIES HERETO FROM TIME TO TIME,
THE OTHER LENDERS FROM TIME TO TIME PARTY HERETO,
and
BANK OF AMERICA, N.A.,
as Administrative Agent and as Collateral Agent
ARRANGED BY:
JPMORGAN CHASE
BANK, N.A.
BOFA SECURITIES, INC.,
CITIBANK,
N.A.,
CITIZENS BANK, N.A.,
PNC CAPITAL MARKETS
LLC,
REGIONS CAPITAL
MARKETS,
and
CAPITAL ONE, N.A.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING
TERMS
1
Section 1.01.
Defined Terms.
1
Section 1.02.
Other Interpretive Provisions.
7286
Section 1.03.
Accounting Terms.
7286
Section 1.04.
Rounding.
7387
Section 1.05.
References to Agreements, Laws, Etc.
7387
Section 1.06.
Times of Day..
7387
Section 1.07.
Timing of Payment or Performance..
7387
Section 1.08.
Currency Equivalents Generally.
7387
Section 1.09.
Certain Calculations and Tests.
7488
Section 1.10.
Additional Alternative Currencies.
7589
Section 1.11.
Letter of Credit Amounts.
7690
Section 1.12.
Divisions.
7691
Section 1.13.
Interest Rates.
7691
ARTICLE II
THE COMMITMENTS AND CREDIT
EXTENSIONS
7791
Section 2.01.
The Loans.
7791
Section 2.02.
Borrowings, Conversions and Continuations of Loans.
7792
Section 2.03.
Letters of Credit.
8195
Section 2.04.
Swing Line Loans.
90105
Section 2.05.
Prepayments.
94108
Section 2.06.
Termination or Reduction of Commitments.
95113
Section 2.07.
Repayment of Loans.
96114
Section 2.08.
Interest.
96115
Section 2.09.
Fees.
97115
Section 2.10.
Computation of Interest and Fees
116
Section 2.11.
Evidence of Indebtedness..
97116
Section 2.12.
Payments Generally.
97116
Section 2.13.
Sharing of Payments.
99118
Section 2.14.
Incremental Credit Extensions.
100119
Section 2.15.
Extensions of Revolving Credit Commitments.
103122
Section 2.16.
Defaulting Lenders.
105124
Section 2.17.
[Reserved].
107126
Section 2.18.
Parent Borrower as Agent.
107126
Section 2.19.
Additional Borrowers.
107126
ARTICLE III
TAXES, INCREASED COSTS
PROTECTION AND ILLEGALITY
108126
Section 3.01.
Taxes.
108126
Section 3.02.
Inability to Determine Rates.
111130
Section 3.03.
Increased Cost and Reduced Return; Capital Adequacy; Reserves on Loans.
114133
i
Section 3.04.
Funding Losses.
115134
Section 3.05.
Matters Applicable to All Requests for Compensation.
116134
Section 3.06.
Replacement of Lenders under Certain Circumstances.
117135
Section 3.07.
Illegality.
118137
Section 3.08.
Survival.
119137
ARTICLE IV
CONDITIONS PRECEDENT TO
CREDIT EXTENSIONS
119138
Section 4.01.
Conditions to Closing Date.
119138
Section 4.02.
Conditions to All Credit Extensions.
120139
ARTICLE V
REPRESENTATIONS AND WARRANTIES
121140
Section 5.01.
Existence, Qualification and Power; Compliance with Laws..
121140
Section 5.02.
Authorization; No Contravention.
121141
Section 5.03.
Governmental Authorization; Other Consents.
122141
Section 5.04.
Binding Effect.
122141
Section 5.05.
Financial Statements; No Material Adverse Effect.
122142
Section 5.06.
Litigation.
122142
Section 5.07.
Ownership of Property; Liens.
123142
Section 5.08.
Environmental Matters.
123142
Section 5.09.
Taxes.
123143
Section 5.10.
Compliance with ERISA.
124143
Section 5.11.
Subsidiaries; Equity Interests.
124143
Section 5.12.
Margin Regulations; Investment Company Act.
124144
Section 5.13.
Disclosure
125144
Section 5.14.
Intellectual Property; Licenses, Etc.
125144
Section 5.15.
Solvency.
125145
Section 5.16.
Collateral Documents.
125145
Section 5.17.
Use of Proceeds.
126145
Section 5.18.
Sanctions Laws and Regulations and Anti-Corruption Laws.
126145
ARTICLE VI
AFFIRMATIVE COVENANTS
126146
Section 6.01.
Financial Statements.
127146
Section 6.02.
Certificates; Other Information.
128147
Section 6.03.
Notices.
129149
Section 6.04.
Maintenance of Existence.
129149
Section 6.05.
Maintenance of Properties.
130149
Section 6.06.
Maintenance of Insurance.
130149
Section 6.07.
Compliance with Laws.
130150
Section 6.08.
Books and Records.
130150
Section 6.09.
Inspection Rights.
130150
Section 6.10.
Covenant to Guarantee Obligations and Give Security.
131151
Section 6.11.
Use of Proceeds.
133151
Section 6.12.
Further Assurances and Post-Closing Covenants.
133153
Section 6.13.
Designation of Subsidiaries.
133153
Section 6.14.
Payment of Taxes.
134154
ii
Section 6.15.
Nature of Business
134154
Section 6.16.
Control Agreements
154
ARTICLE VII
NEGATIVE COVENANTS
134155
Section 7.01.
Indebtedness.
134155
Section 7.02.
Liens.
139160
Section 7.03.
Investments.
139160
Section 7.04.
Fundamental Changes.
142164
Section 7.05.
Dispositions.
143165
Section 7.06.
Restricted Payments.
145167
Section 7.07.
Transactions with Affiliates.
147170
Section 7.08.
Prepayments, Etc., of Indebtedness.
148171
Section 7.09.
[Reserved].
149172
Section 7.10.
Subsidiary Distributions.
149172
Section 7.11.
Financial Covenants.
150173
Section 7.12.
Liability Management Transactions
174
ARTICLE VIII
EVENTS OF DEFAULT AND
REMEDIES
151174
Section 8.01.
Events of Default.
151174
Section 8.02.
Remedies Upon Event of Default.
153176
Section 8.03.
Exclusion of Immaterial Subsidiaries..
153177
Section 8.04.
Application of Funds.
154177
Section 8.05.
Right to Cure.
155178
ARTICLE IX
ADMINISTRATIVE AGENT AND
OTHER AGENTS
156179
Section 9.01.
Appointment and Authorization of Agents.
156179
Section 9.02.
Delegation of Duties.
157180
Section 9.03.
Liability of Agents
157180
Section 9.04.
Reliance by Agents.
158181
Section 9.05.
Notice of Default.
158181
Section 9.06.
Credit Decision; Disclosure of Information by Agents..
159182
Section 9.07.
Indemnification of Agents.
159182
Section 9.08.
Agents in their Individual Capacities.
160183
Section 9.09.
Successor Agents.
160183
Section 9.10.
Administrative Agent May File Proofs of Claim.
161184
Section 9.11.
Collateral and Guaranty Matters.
162185
Section 9.12.
Other Agents; Arrangers and Managers.
164187
Section 9.13.
Appointment of Supplemental Administrative Agents.
164187
Section 9.14.
Withholding Tax.
165188
Section 9.15.
Cash Management Obligations; Secured Hedge Agreements; Bilateral Letters of Credit.
165188
Section 9.16.
Presumptions by Administrative Agent.
165189
Section 9.17.
Recovery of Erroneous Payments.
166189
iii
ARTICLE X
MISCELLANEOUS
166189
Section 10.01.
Amendments, Etc.
166189
Section 10.02.
Notices and Other Communications; Facsimile Copies.
169193
Section 10.03.
No Waiver; Cumulative Remedies.
172195
Section 10.04.
Attorney Costs and Expenses.
172196
Section 10.05.
Indemnification by the Borrowers..
172196
Section 10.06.
Payments Set Aside.
174198
Section 10.07.
Successors and Assigns.
174198
Section 10.08.
Confidentiality.
180203
Section 10.09.
Setoff.
181204
Section 10.10.
Counterparts.
181205
Section 10.11.
Integration.
181205
Section 10.12.
Survival of Representations and Warranties..
182205
Section 10.13.
Severability.
182206
Section 10.14.
GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS.
182206
Section 10.15.
WAIVER OF RIGHT TO TRIAL BY JURY..
183206
Section 10.16.
Binding Effect.
183207
Section 10.17.
Judgment Currency
183207
Section 10.18.
Lender Action.
184207
Section 10.19.
Know-Your-Customer, Etc..
184208
Section 10.20.
USA PATRIOT Act.
184208
Section 10.21.
Acceptable Intercreditor
Agreement.Agreements
184208
Section 10.22.
Obligations Absolute.
185209
Section 10.23.
No Advisory or Fiduciary Responsibility.
185209
Section 10.24.
Electronic Execution of Assignments and Certain Other Documents.
186210
Section 10.25.
Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
186210
Section 10.26.
Lender Representation.
186211
Section 10.27.
Acknowledgement Regarding any Supported QFCs.
187211
SCHEDULES
1.01A
—
Certain Security Interests and Guarantees
1.01B
—
Unrestricted Subsidiaries[Reserved]
1.01C
—
Amendment No. 4 Effective Date Excluded Subsidiaries
1.01D
—
Amendment No. 4 Effective Date Guarantors
1.01E
—
Material Real Properties
2.01
—
Commitments[Reserved]
2.03(a)(i)
—
Amendment No. 4 Effective Date Existing Letters of Credit
2.03(a)(ii)
—
Existing Apria Letters of Credit
5.06
—
Litigation
5.11
—
Amendment No. 4 Effective Date Subsidiaries and Other Equity Investments
6.12
—
Post-Closing Covenants
7.01(b)
—
Amendment No. 4 Effective Date Surviving Indebtedness
7.02
7.03(g)
—
—
Amendment No. 4 Effective Date Existing Liens
Amendment No. 4 Effective Date Existing Investments
7.07
—
Amendment No. 4 Effective Date Transactions with Affiliates
10.02
—
Administrative Agent’s Office; Certain Addresses for Notices
iv
EXHIBITS
Form
of
A-1
—
Committed Loan Notice (Dollar-Denominated Loans and L/C Credit Extensions)
A-2
—
Committed Loan Notice (Alternative Currency Loans)
B
—
Swing Line Loan Notice
C
—
Revolving Credit Note
D
—
Compliance Certificate
E
—
Assignment and Assumption
F
—
Guaranty[Reserved]
G
—
Second Lien Intercreditor Agreement[Reserved]
H
—
Security Agreement[Reserved]
I
—
Secured Party Designation Notice
L
—
United States Tax Compliance Certificate
M
—
Liquidity Certificate
v
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of March 10, 2021
(as amended by that certain Amendment No. 1 to Credit Agreement, dated as of February 22, 2022, that certain
Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to Security Agreement and Amendment No. 1 to Guaranty, dated as of March 29, 2022, that certain Amendment No. 3 to Credit Agreement, dated as
of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement dated as of June 15, 2026, this “Agreement”) is by and among ACCENDRA HEALTH, INC. (f/k/a OWENS & MINOR, INC.), a Virginia corporation (the “Parent
Borrower”), OWENS & MINOR DISTRIBUTION, INC., a Virginia corporation (“Distribution”), OWENS & MINOR MEDICAL,
INC., a Virginia corporation (“Medical”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a
Virginia limited liability company (“Barista II”), O&M HALYARD, INC., a Virginia corporation (“O&M Halyard”),
BYRAM HEALTHCARE CENTERS, INC., a New Jersey Corporation
(“Byram”), and together withAPRIA,
INC., a Delaware corporation (“Apria”; the Parent Borrower, Distribution, Medical,
Barista I, Barista II, Byram, and O&M
Halyard,Apria, collectively the “U.S.
Borrowers”), each other Borrower as may become party hereto from time to time pursuant to Section 2.19, the each lender from time to time party hereto (collectively, the
“Lenders (as defined herein” and individually, a “Lender”) and BANK OF
AMERICA, N.A., as administrative agent (or any of its designated branch offices or affiliates, in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (in such capacity, the
“Collateral Agent”).
RECITALS:
The Borrowers have requested
that, on the Amendment No. 4 Effective Date, the Lenders make
available to them the Revolving Credit Commitments in an initial aggregate principal amount of $300,000,000 (the “Amendment
No. 4 Revolving Credit Facility”) for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein. The Amendment No. 4 Revolving Credit Facility may include one or more
Swing Line Loans and one or more Letters of Credit from time to time.
Therefore, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section
1.01. Defined
TermsDefined Terms. As used in this Agreement, the following terms shall have the meanings set
forth below:
“2014 Indenture” means that certain Indenture, dated September 16, 2014, by and among the
Parent Borrower, the guarantors party thereto and Regions Bank, (as successor to U.S. Bank National Association), as trustee, as amended, restated, supplemented or otherwise modified from time to time.
“2014 Indenture Notes” means those certain Senior Notes issued pursuant to the 2014 Indenture.
1
“2021 Indenture” means that certain Indenture, dated March 10, 2021,
among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended, restated, supplemented or otherwise modified from time to time.
“2021 Indenture Notes” means those certain Senior Notes issued pursuant to the 2021 Indenture.
“2022 Indenture” means that certain Indenture, dated as of March 29, 2022the
Amendment No. 2 Effective Date, among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended, restated, supplemented or otherwise modified from time to
time.
“2022 Indenture Notes” means those certain Senior Notes issued pursuant to the 2022 Indenture.
“2026
First Lien Indenture” means that certain Indenture, dated as of the Amendment No. 4 Effective Date, among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended, restated, supplemented or otherwise
modified from time to time, relating to the 2026 First Lien Notes.
“2026 First Lien Notes” means those certain 9.000% Senior Secured First Lien Notes due 2032 issued from
time to time pursuant to the 2026 First Lien Indenture.
“2026 Second Lien Indenture” means that certain Indenture, dated as of the Amendment No. 4 Effective
Date, among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended, restated, supplemented or otherwise modified from time to time, relating to the 2026 Second Lien Notes.
“2026
Second Lien Notes” means those certain 9.750% Senior Secured Second Lien Notes due 2033 issued from time to time pursuant to the 2026 Second Lien Indenture.
“2026
Senior Secured Notes” means, collectively, the 2026 First Lien Notes and the 2026 Second Lien Notes.
“Accendra
Executive Deferred Compensation Trust” means Accendra Health Inc. Executive Deferred Compensation Trust and its successors and assigns.
“Accendra
Health Foundation” means Accendra Health Foundation and its successors and assigns.
“Acceptable Intercreditor Agreement” means a customary intercreditor agreement that is either (A) substantially in the
form of (x) in the case of Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that are pari passu with the Liens securing the Obligations, the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor Agreement
or (y) in the case of Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that are junior to the Liens securing the Obligations,
Exhibit Gthe
Junior Lien Intercreditor Agreement or (B) with changes to Exhibit G or the Amendment No. 2
Effective Datethe Junior Lien Intercreditor Agreement or the Pari Passu First Lien Intercreditor Agreement, as applicable, as reasonably agreed between the Administrative Agent and the Borrowers which have not been objected to by the applicable Required Lenders within five (5) Business
Days of having been posted (which shall be deemed acceptable to the Administrative Agent and the applicable Required Lenders).
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 or
Consolidated Covenant EBITDA, as applicable, of such Acquired Entity or Business or Converted Restricted Subsidiary, 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 specified in the definition of the term “Consolidated EBITDA.”
“Acquired Indebtedness” means with respect to any Person (a) Indebtedness of any other Person or any
of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary or merges or amalgamates with or into or consolidated or otherwise combines with the Parent Borrower or any of its Restricted Subsidiaries and
(b) Indebtedness secured by a Lien encumbering any asset acquired by such Person. Acquired Indebtedness shall be deemed to have been incurred, with respect to clause (a) of the preceding sentence, on the date such Person becomes a
Restricted Subsidiary or on the date of the relevant merger, amalgamation, consolidation, acquisition or other combination.
“Additional Lender” has the meaning specified in Section 2.14(d).
“Additional Revolving Credit Commitment” has the meaning specified in Section 2.14(a).
“Administrative Agent” means, subject to Section 9.13, Bank of America in its capacity as administrative agent
under the Loan Documents, or any successor administrative agent appointed in accordance with Section 9.09.
“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Parent Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial
Institution.
“Affiliate” means, with respect to 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.
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
3
“Agents” means, collectively, the Administrative Agent, the Collateral
Agent, and the Supplemental Administrative Agents (if any).
“Aggregate Commitments” means the Commitments of all the
Lenders.
“Aggregate Revolving Commitment Amount” has the meaning specified in the definition of “Revolving
Credit Commitment”.
“Agreed Currency” means Dollars or any Alternative Currency, as applicable.
“Agreement” has the meaning specified in the introductory paragraph hereof.
“AHYDO Payment” means any payment with respect to any obligations of the Borrowers or any Restricted Subsidiary, including SubordinatedRestricted
Debt obligations, in each case to avoid the application of Code Section 163(e)(5) thereto.
“Alternative Currency” means each of
Euro, Sterling, Yen, Canadian Dollars, Australian Dollars and each other currency (other than Dollars) that is approved in accordance with Section 1.10.
“Alternative Currency Daily Rate” means, for any day, with respect to any extension of credit under the Credit Agreement
denominated in Sterling, the rate per annum equal to SONIA determined pursuant to the definition thereof plus the SONIA Adjustment; provided, that, if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative Currency Daily Rate shall be
effective from and including the date of such change without further notice.
“Alternative Currency Daily Rate
Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in Sterling.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent
amount thereof in the applicable Alternative Currency as reasonably determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of such Alternative Currency with Dollars.
“Alternative Currency Loan” means an
Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
“Alternative Currency Term
Rate” means, for any Interest Period, with respect to any extension of credit under the Credit Agreement:
(a)
denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate
(“EURIBOR”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the day that is two
TARGET Days preceding the first day of such Interest Period with a term equivalent to such Interest Period;
4
(b)
denominated in Japanese Yen, the rate per annum equal to the Tokyo Interbank Offer Rate
(“TIBOR”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the day that is two
Business Days preceding the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that, to the
extent such market practice is not administratively feasible for the Administrative Agent, then such date shall be such other day as otherwise reasonably determined by the Administrative Agent) with a term equivalent to such Interest Period;
(c)
denominated in Australian Dollars, the rate per annum equal to the Bank Bill Swap Reference Bid Rate
(“BBSY”), as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the day that is two
Business Days preceding the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that, to the
extent such market practice is not administratively feasible for the Administrative Agent, then such date shall be such other day as otherwise reasonably determined by the Administrative Agent) with a term equivalent to such Interest Period; and
(d)
denominated in Canadian Dollars, the rate per annum equal to the Canadian Dollar
Offered Rate (“CDORforward-looking term rate based on CORRA (“Term CORRA”), as published on the applicable
Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “CDORTerm CORRA Rate”) on the day that is two Business Days preceding the first day of such Interest Period (or such other day as
is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that, to
the extent such market practice is not administratively feasible for the Administrative Agent, then such date shall be such other day as otherwise reasonably determined by the Administrative
Agent)Rate Determination Date with a term equivalent to such Interest Period;
provided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of
this Agreement.
“Alternative Currency Term Rate Loan” means a Loan that bears interest at a rate based on the
definition of “Alternative Currency Term Rate.” All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.
“Amendment No. 2 Effective Date” has
the meaning set forth in the Second Amendment.
“Amendment
No. 2 Effective Date Intercreditor Agreement” means that certain First
Lien Pari Passu Intercreditor Agreement, dated as of the Amendment No. 2 Effective Date, among
theAmendment No. 2 to Credit Agreement, Amendment No. 1 to Security Agreement and Amendment
No. 1 to Guaranty dated as of March 29, 2022, by and among the U.S. Borrowers, the Parent Borrower, the Guarantors party thereto, the Lenders party thereto, the Administrative Agent, the
Collateral Agent, JPMorgan
Chasethe Swing Line Lender and Bank of America, N.A., as
5
collateral agent under the Term Loan Credit Agreement, and the representatives for purposes thereof for holders
of one or more other classes of Indebtedness, and acknowledged and agreed by the Loan Parties, as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement (so long as
such replacement intercreditor agreement would qualify as an Acceptable Intercreditor Agreement for Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that are pari passu with the Liens securing the
Obligations).L/C Issuer.
“Amendment
No. 2 Effective Date” has the meaning set forth in Amendment No. 2.
“Amendment
No. 4” means that certain Amendment No. 4 to Credit Agreement, dated as of June 15, 2026, by and among the Parent Borrower, the other Borrowers, the Guarantors party thereto, the Lenders party thereto and the Administrative
Agent.
“Amendment No. 4 Effective Date” has the meaning assigned to such term in Amendment No. 4.
“Amendment
No. 4 Revolving Credit Facility” has the meaning specified in the Preliminary Statements to this Agreement.
“Amendment
No. 4 Transactions” means, collectively, as applicable, (a) the issuance of the 2026 First Lien Notes and the use of proceeds therefrom, (b) the issuance of the 2026 Second Lien Notes, (c) the Exchange Offers (as
defined in the 2026 First Lien Indenture and the 2026 Second Lien Indenture), (d) the amendment to this Agreement on the Amendment No. 4 Effective Date, (e) the amendment of the Term Loan Credit Agreement on or about the Amendment
No. 4 Effective Date, (f) the repayment of existing indebtedness on or around the Amendment No. 4 Effective Date, (g) the payment of fees, expenses and premiums incurred in connection with the foregoing and (h) other related
transactions and use of proceeds, in each case, including as described in the Exchange Offering Memorandum.
“Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any Governmental Authority having
jurisdiction over the Administrative Agent or the SOFR Administrator and (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any governmental authority having
jurisdiction over the Administrative Agent or such administrator.
“Applicable Lending Office” means for any Lender,
such Lender’s office, branch or affiliate designated for Term SOFR Loans, Base Rate Loans, Alternative Currency Loans, L/C Advances, Swing Line Loans or Letters of Credit, as applicable, as notified to the Administrative Agent, any of which
offices may be changed by such Lender.
“Applicable Percentage” means, at any time (a) with respect to any Lender
with a Commitment of any Class, the percentage equal to a fraction the numerator of which is the amount of such Lender’s Commitment of such Class at such time and the denominator of which is the aggregate amount of all Commitments of such
Class of all Lenders (provided that if the Commitments under the Amendment No. 4 Revolving Credit Facility have terminated or expired, the Applicable Percentages of the Lenders under the
Amendment No. 4 Revolving Credit Facility shall be
determined based upon the Revolving Credit Commitments thereunder most recently in effect) and (b) with respect to the Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s Outstanding Amount of the
Loans of such Class and the denominator of which is the aggregate Outstanding Amount of all Loans of such Class.
6
“Applicable Rate” means, from and after the Amendment No. 4 Effective Date, with respect
to Revolving Credit Loans, Swingline Loans, the Standby Letter of Credit Fee and the Commitment Fee, the following rates per annum based on the Debt Ratings or the
Total Leverage Covenant Ratio (expressed as a multiple,
such that e.g.,
“1.25x4.00x
” means a Total Leverage Covenant Ratio of
1.254.00
:1.00), as applicable, in each case, as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a), it being understood that the Applicable Rate shall be determined
by either the Debt Ratings or the Total Leverage Covenant
Ratio, as applicable, whichever shall result in
lower pricing to the Borrowers, it being understood that the Applicable Rate for (i) Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”,
(ii) Term SOFR Loans shall be the percentage set forth under the column “SOFR Margin”, (iii) Daily Simple SOFR Swingline Loans shall be the percentage set forth under the column “SOFR Margin”, (iv) Alternative
Currency Loans shall be the percentage set forth under the column “Alternative Currency Loan Margin” and (v) the Standby Letter of Credit Fee shall be the percentage set forth under the column “SOFR Margin”:
SOFR Margin, Alternative Currency Loan Margin and Base Rate Margin
Level
RatingsTotal
Leverage
Covenant
Ratio
SOFR
Margin
Total
Leverage
Ratio
Commitment
FeeAlternative
Currency
Loan
Margin
SOFR
Margin
Alternative
Currency
Loan
Margin
Base Rate
Margin
I
< 4.00x
3.00
%
3.00
%
2.00
%
II
> 4.00x
3.50
%
3.50
%
2.50
%
Commitment
Fee
Level
Ratings
Total Leverage
Covenant
Ratio
Commitment Fee
I
Baa3 / BBB-
or better
< 0.50x
1.75%
1.75%
0.75%0.175%
II
Ba1 / BB+
> 0.50x but < 1.25x
2.00%
2.00%
1.00%0.200%
III
Ba2 / BB
> 1.25x but < 2.00x
2.25%
2.25%
1.25%0.225%
IV
Ba3 / BB-
> 2.00x but < 2.75x
2.50%
2.50%
1.50%0.250%
V
B1 / B+
> 2.75x but < 3.75x
2.75%
2.75%
1.75%0.300%
VI
B2 / B
or worse
> 3.75x
3.00%
3.00%
2.00%0.400%
7
Any increase or decrease in the Applicable Rate 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 if a Compliance Certificate is not delivered when due in accordance with Section 6.02(a)
(after giving effect to any applicable grace period in Article VIII), then, upon the request of the Required Revolving Credit Lenders, Level VIII in respect of the heading “SOFR Margin, Alternative Currency Loan Margin and Base Rate Margin” or Level
VI in respect of the heading “Commitment Fee”, as applicable, shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate was
required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. Notwithstanding the foregoing, the Applicable Rate in effect from the ClosingAmendment No. 4
Effective Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 6.02(a) for the fiscal quarter
ending after the
ClosingAmendment
No. 4 Effective Date shall be determined based upon Level IVII in respect of the heading “SOFR Margin, Alternative Currency Loan Margin and Base Rate Margin” or Level
VI in respect of the heading “Commitment Fee”, as applicable. At such times as the Applicable Rate is determined by the Debt Ratings, the Applicable Rate shall be determined in
accordance with the above pricing grid based on the Parent Borrower’s status as determined from the better of its then current Moody’s Rating, S&P Rating or Fitch Rating as reflected in the Compliance Certificate delivered pursuant
to Section 6.02(a). If at any time (A) the Parent Borrower has only two Debt Ratings and there is a split rating, the Applicable Rate shall be based upon the Level indicated by the higher of the two ratings unless there is a two or
more level difference in the levels indicated by each of the two available ratings, in which case the Level that is one level below the higher rating shall apply, or (B) the Parent Borrower has three Debt Ratings and there is a split rating
such that (1) all three ratings fall in different Levels, the Applicable Rate shall be based upon the Level indicated by the rating that is neither the highest nor the lowest of the three ratings or (2) two of the three ratings fall in one
Level (the “Majority Level”) and the third rating falls in a different Level, the Applicable Rate shall be based upon the Level indicated by the Majority Level. Should the Parent Borrower not have any Debt Rating, the corporate
credit or issuer rating of the Parent Borrower will be used in lieu thereof, or if no such rating is available, then the Total Leverage
Covenant Ratio shall be used to determine the Applicable
Rate.
Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is
subsequently determined that the Total Leverage Covenant Ratio set
forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period based on an Applicable Rate that is less than that which would
have been applicable had the Total Leverage Covenant Ratio
been accurately determined, then, for all purposes of this Agreement, the “Applicable Rate” for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the relevant percentage as
based upon the accurately determined Total Leverage Covenant
Ratio for such period, and any shortfall in the interest or fees theretofore paid by the Borrowers for the relevant period pursuant to Sections 2.09 and 2.10 as a result of the
miscalculation of the Total Leverage Covenant Ratio shall
be deemed to be (and shall be) due and payable to the applicable Lenders of record at the time of payment under the relevant provisions of Sections 2.09 or 2.10, as applicable, at the time the interest or fees for such period were
required to be paid pursuant to said Section (and shall remain due and payable until paid in full, together with
8
all amounts owing under Section 2.09 (other than Section 2.09(b)), in accordance with the terms of this Agreement); provided that, notwithstanding the foregoing, so
long as an Event of Default described in Section 8.01(f) has not occurred with respect to any Borrower, such shortfall shall be due and payable five (5) Business Days following the determination described above. Notwithstanding the
foregoing, the Applicable Rate in respect of any Class of Extended Revolving Credit Commitments or Revolving Credit Loans made pursuant to any Extended Revolving Credit Commitments shall be the applicable rates per annum set forth in the relevant
Extension Offer.
“Applicable Time” means, with respect to any payments in any Alternative Currency, the local time in
the place of settlement for such Alternative Currency as may be determined by the applicable L/C Issuer to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Applicant Foreign Borrower” has the meaning assigned to such term in Section 2.19.
“Appropriate Lender” means, at any time, (a) with respect to Loans of any Class, the Lenders of such Class,
(b) with respect to any Letters of Credit, (i) the relevant L/C Issuer and (ii) the Revolving Credit Lenders and (c) with respect to the Swing Line Loans, (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 Foreign Bank” has the
meaning specified in the definition of “Cash Equivalents.”
“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.
“Asset
Percentage” has the meaning specified in Section 2.05(b)(ii)(A).
“Assignees” has the meaning specified in Section 10.07(b).
“Assignment and Assumption” means (a) an Assignment and Assumption substantially in the form of Exhibit E.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements 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.
“Audited Parent Borrower Financial Statements” means (i) the audited consolidated balance sheet of Parent Borrower as
of December 31, 2020 and (ii) the related audited consolidated statements of income, cash flows and stockholders’ equity of Parent Borrower for the fiscal year ended December 31, 2020; provided that for purposes of
Section 5.05 on or following the Amendment No. 2 Effective Date, “Audited Parent Borrower Financial Statements” means (i) the audited consolidated balance sheet of Parent Borrower as of December 31, 2021 and
(ii) the related audited consolidated statements of income, cash flows and stockholders’ equity of Parent Borrower for the fiscal year ended December 31, 2021.
9
“Auto-Renewal Letter of Credit” has the meaning specified in
Section 2.03(b)(iii).
“Available
Amount” means, at any time (the “Available Amount Reference Time”), an amount (which shall not be less than zero) equal to the sum of:
(a)
$202,000,000; plus
(b)
50% of Consolidated Net Income (which shall not be less than zero in any period)
for the period from the first day of the fiscal quarter of the Parent Borrower during which the Amendment No. 2 Effective Date occurred to and including the last day of the most recently ended fiscal quarter of the Parent Borrower prior to the
Available Amount Reference Time; plus
(c)
the amount of any capital contributions (including mergers or consolidations that have a similar
effect) or Net Cash Proceeds from any Permitted Equity Issuance (or issuance of debt securities by the Parent Borrower or any of its Restricted Subsidiaries that have been converted into or exchanged for Qualified Equity Interests of the Parent
Borrower or any direct or indirect parent thereof), in each case during the period from the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available Amount Reference Time (other than any Cure
Amount, any Excluded Contribution Amount, or any other capital contributions (including mergers or consolidations that have a similar effect) or equity or debt issuances to the extent utilized in connection with other transactions permitted pursuant
to Section 7.01, 7.03, 7.06 or 7.08) received or made to the Parent Borrower (or any direct or
indirect parent thereof and contributed by such parent to the Parent Borrower) during the period from and including the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available Amount Reference
Time; plus
(d)
the aggregate amount of Retained Declined Proceeds (as defined in the Term Loan
Credit Agreement as in effect on the Amendment No. 2 Effective Date) during the period from the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available Amount Reference Time;
plus
(e)
to the extent not (i) already included in the calculation of Consolidated Net Income of the
Parent Borrower and the Restricted Subsidiaries or (ii) already reflected as a return of capital or deemed reduction in the amount of such Investment pursuant to clause (g) below or any other provision of Section 7.03, the aggregate amount of all cash dividends and other cash distributions
received by the Parent Borrower or any Restricted Subsidiary from any JV Entity or Unrestricted Subsidiaries during the period from the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available
Amount Reference Time; plus
(f)
to the extent not (i) already included in the calculation of Consolidated Net Income of the
Parent Borrower and the Restricted Subsidiaries or (ii) already reflected as a return of capital or deemed reduction in the amount of such Investment pursuant to clause (g) below or any other provision of Section 7.03, the aggregate amount of all Net Cash Proceeds received by the Parent
Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any JV Entity or Unrestricted Subsidiary during the period from the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available Amount Reference Time; minus
10
(g)
the aggregate amount of (i) any Investments made pursuant to Section 7.03(n) (net of any return of capital in respect of such Investment or deemed reduction in the amount of such Investment, including, without limitation, upon
the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary or the sale, transfer, lease or other disposition of any such Investment), (ii) any Restricted Payment made pursuant to
Section 7.06(k) and (iii) any payments made pursuant to
Section 7.08(a)(iii)(B), in each case, during the period commencing on the Amendment No. 2 Effective Date through and including the
Available Amount Reference Time (and, for purposes of this clause (g), without taking account of the intended usage of the Available Amount at such
Available Amount Reference Time).
“Bail-In Action” means the exercise of any
Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU
of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with
respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment
firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” has the meaning specified in the introductory paragraph to this Agreement.
“Bankruptcy Code” means Title 11 of the United State Code, as amended, or any similar federal or state law for the relief
of debtors.
“Bankruptcy Event” means, with respect to any Person, such Person or its parent entity becomes (other than
via an Undisclosed Administration) the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or
appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof;
provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person or its parent entity.
11
“Base Rate” means, for any day, a fluctuating rate per annum equal to the
greatest of: (a) the Federal Funds Rate in effect on such date plus 1/2 of 1.00%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) Term
SOFR plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.02 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to
clause (c) above. Notwithstanding any provision to the contrary in this Agreement, the Base Rate shall at no time be less than 1.00%.
“Base Rate Loan” means a Loan that bears interest at a rate based on the Base Rate.
“Bilateral Letter of Credit” means any letter of credit, bank guarantee or surety instrument (other than any Letter of
Credit) issued in the ordinary course of business.
“Bilateral Letter of Credit Bank” means any Person in its capacity
as an issuer of a Bilateral Letter of Credit that (a) at the time it issues such Bilateral Letter of Credit for the benefit of a Loan Party or any Restricted Subsidiary, is a Lender, an Affiliate of a Lender, an Agent or an Affiliate of an
Agent, (b) in the case of any Bilateral Letter of Credit for the benefit of a Loan Party or any Restricted Subsidiary in effect on or prior to the Closing Date, is, as of the Closing Date or within thirty (30) days thereafter, a Lender, an
Affiliate of a Lender, an Agent or an Affiliate of an Agent or (c) within thirty (30) days after the time it issues a Bilateral Letter of Credit for the benefit of a Loan Party or any Restricted Subsidiary, becomes a Lender, an Affiliate
of a Lender, an Agent or an Affiliate of an Agent; provided that for any of the foregoing to be included as a “Secured Bilateral Letter of Credit” on any date of determination by the Collateral Agent, the applicable Bilateral
Letter of Credit Bank (other than an Agent or an Affiliate of an Agent) must have delivered a Secured Party Designation Notice to the Collateral Agent prior to such date of determination.
“Bilateral Letter of Credit Obligations” means all obligations of any Loan Party or any Restricted Subsidiary owing to a
Bilateral Letter of Credit Bank in respect of any Secured Bilateral Letter of Credit (including, but not limited to, any interest or other amount accruing after the occurrence of a Bankruptcy Event with respect to any Loan Party or any Restricted
Subsidiary, regardless of whether such interest or other amount is an allowed claim under the Bankruptcy Code); provided that (a) such Bilateral Letters of Credit shall otherwise be permitted pursuant to this Agreement, and (b) the
aggregate amount of all Bilateral Letter of Credit Obligations shall not exceed an amount equal to the greater of (i) $50,000,00025,000,000, and (ii) 157.5% of Consolidated EBITDA (determined as of the end of the most recent fiscal quarter of the Parent Borrower for which financial statements have been delivered pursuant to Section 6.01(a) or
(b)).
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowers” means (a) the U.S. Borrowers, and (b) the Foreign Borrowers.
“Borrowing” means Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Term
SOFR Loans and Alternative Currency Term Rate Loans, as to which a single Interest Period is in effect.
12
“Business Day” means any day that is not 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 where the Administrative Agent’s Office is located; provided that:
(a)
if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in Euro, any
fundings, disbursements, settlements and payments in Euro in respect of any such Alternative Currency Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan, means a Business
Day that is also a TARGET Day;
(b)
if such day relates to any interest rate settings as to an Alternative Currency Loan denominated in
(i) Sterling, means a day other than a day banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom, (ii) Japanese Yen, means a day other than when banks
are closed for general business in Japan, (iii) Australian Dollars, means a day other than when banks are closed for general business in Australia and (iv) Canadian Dollars, means a day other than when banks are closed for general business
in Canada; and
(c)
if such day relates to any fundings, disbursements, settlements and payments in a currency other than Euro in
respect of an Alternative Currency Loan denominated in a currency other than Euro, or any other dealings in any currency other than Euro to be carried out pursuant to this Agreement in respect of any such Alternative Currency Loan (other than any
interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
“Canadian Dollars” means the lawful currency of Canada.
“Capital
Expenditures” means, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities) by the Parent Borrower and its Restricted Subsidiaries during such period that, in
conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment in a consolidated statement of cash flows and reflected in the consolidated balance sheet of the Parent Borrower and its
Restricted Subsidiaries and (b) Capitalized Lease Obligations incurred by the Parent Borrower and its Restricted Subsidiaries during such period.
“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association or
business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a
limited liability company, membership interests and (e) 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 Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in
respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that all obligations of the
Parent Borrower and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on December 15, 2018 (whether or not such operating lease was in effect on
December 15, 2018) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP following such date that would otherwise require such obligation to be
recharacterized as a Capitalized Lease.
13
“Capitalized Leases” means all leases that 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 in accordance with GAAP;
provided that all obligations of the Parent Borrower and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on December 15, 2018 (whether or not such
operating lease was in effect on December 15, 2018) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP following such date that would
otherwise require such obligation to be recharacterized as a Capitalized Lease.
“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.
“Cash Collateral” has the meaning specified in Section 2.03(f).
“Cash Collateralize” has the meaning specified in Section 2.03(f).
“Captive
Insurance Subsidiary” means (i) any Subsidiary of the Parent Borrower operating for the purpose of (a) insuring the businesses, operations or properties owned or operated by any parent entity, the Parent Borrower or any of its
Subsidiaries, including their future, present or former employee, director, officer, manager, contractor, consultant or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members), 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 shall be considered
“activities or business incidental thereto”) or (ii) any Subsidiary of any such insurance subsidiary operating for the same purpose described in the foregoing clause (i).
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Parent Borrower
or any Restricted Subsidiary:
(a)
Dollars;
(b)
securities issued or directly and fully and unconditionally guaranteed or insured by the United States
government or any agency or instrumentality of the foregoing 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;
(c)
certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from
the date of acquisition, with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $100,000,000 (or the Dollar Equivalent as of the date of determination) in the case of
non-U.S. banks;
14
(d)
repurchase obligations for underlying securities of the types described in clauses (b),
(c) and (g) of this definition entered into with any financial institution meeting the qualifications specified in clause (c) above;
(e)
commercial paper rated at least “P-1” by Moody’s or at least “A-1” by S&P,
and in each case maturing within 24 months after the date of creation thereof and Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s, with
maturities of 24 months or less from the date of acquisition;
(f)
marketable short-term money market and similar securities 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 selected
by the Parent Borrower) and in each case maturing within 24 months after the date of creation or acquisition thereof;
(g)
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 Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
(h)
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 Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
(i)
Investments with average maturities of 12 months or less from the date of acquisition in money market funds
rated within the top three ratings category by S&P or Moody’s;
(j)
with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which
such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of
investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive
office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof
or from Moody’s is at least “P-1” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and
(iii) the equivalent of demand deposit accounts which are maintained with an Approved Foreign Bank;
(k)
Cash Equivalents of the types described in clauses (a) through (j) above denominated in
Dollars, Euro, Brazilian Real, Sterling, Australian Dollars, Canadian Dollars, Chinese Yuan, Danish Kroner, Hong Kong Dollars, Hungarian Forint, Indian Rupee, Japanese Yen, New Zealand Dollars, Norwegian Krone, Singapore Dollars, South African Rand,
Swedish Kroner, Swiss Francs, Turkish Lira, United Arab Emirates
15
Dirham or any other currency (other than Dollars) that is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars or, solely to the
extent held in the ordinary course of business and not for speculative purposes, any currency in which the Parent Borrower and/or its Restricted Subsidiaries regularly conducts business; and
(l)
investment funds investing at least 90% of their assets in Cash Equivalents of the types described in
clauses (a) through (k) above.
“Cash Management Bank” means any financial
institution providing treasury, depository, credit or debit card, purchasing card, and/or cash management services or automated clearing house transactions to the Parent Borrower or any Restricted Subsidiary or conducting any automated clearing
house transfers of funds; provided, that, if such financial institution is not an Agent, a Lender or an Affiliate of a Lender, such financial institution executes and delivers to the Administrative Agent and the Parent Borrower a letter
agreement in form and substance reasonably acceptable to the Administrative Agent and the Parent Borrower pursuant to which such financial institution (a) appoints the Administrative Agent as its agent under the applicable Loan Documents and
(b) agrees to be bound by the provisions of Sections 4.01, 4.02, 5.13, 5.15, 5.16 and 5.17 of the Security Agreement, in each case, as if it were a Lender.
“Cash Management Obligations” means obligations owed by the Parent Borrower or any Restricted Subsidiary to any Cash
Management Bank in respect of any overdraft and related liabilities arising from treasury, depository, credit or debit card, purchasing card, or cash management services or any automated clearing house transfers of funds; provided that, in no
event shall any such obligations constitute Cash Management Obligations hereunder to the extent that such obligations constitute “Cash Management Obligations” under and as defined in the Term Loan Credit Agreement.
“Casualty Event” means any event that gives rise to the receipt by the Parent Borrower 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 any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of
the Code.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority
or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International
settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law,” regardless of the date enacted, adopted or issued.
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“Change of Control” means any of the following events: (a) any
Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of Voting Stock of the Parent Borrower (or other securities convertible into such Voting Stock) representing 35% or more of the
combined voting power of all Voting Stock of the Parent Borrower, (b) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, control over Voting Stock of the Parent Borrower (or other securities convertible into such securities) representing 35% or more of the combined voting power of all Voting Stock of the Parent
Borrower, or (c) the Parent Borrower shall fail to own (directly or indirectly) 100% of the Capital Stock of each Borrower. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3 of the Securities and
Exchange Commission under the Securities and Exchange Act of 1934.
“City Code” has the meaning specified in
Section 1.09(a).
“Class” when used with respect to Commitments, refers to whether such Commitments are
Revolving Credit Commitments, Extended Revolving Credit Commitments, Incremental Revolving Commitments, or Refinancing Revolving Commitments.
“Closing Date” means the date all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01. The Closing Date occurred on March 10, 2021.
“Closing Date Transaction Expenses” means any fees or expenses incurred or
paid by Parent Borrower, the Borrowers, or any Restricted Subsidiary in connection with the Closing Date Transactions and the transactions contemplated in connection therewith.
“Closing Date Transactions” means, collectively, (a) the funding of the Initial Revolving Borrowing hereunder,
(b) the execution and delivery of the Loan Documents and (c) the payment of Closing Date Transaction Expenses.
“CME” means CME Group Benchmark Administration Limited.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Collateral” means all the “Collateral” as defined in the Collateral Documents and all other property of
whatever kind and nature pledged or charged as collateral under any Collateral Document, and shall include the Mortgaged Properties.
“Collateral Agent” means Bank of America, in its capacity as collateral
agent under any of the Loan Documents, or any successor collateral agent appointed in accordance with Section 9.09.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a)
the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date
pursuant to Section 4.01(a)(iii), or thereafter pursuant to Section 6.10 or Section 6.12, duly executed by each Loan Party that is a party thereto;
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(b)
all Obligations shall have been unconditionally guaranteed (the “Guarantees”), jointly and
severally, by each Restricted Subsidiary that is a Material Subsidiary (other than any Excluded Subsidiary) including as of the
ClosingAmendment No. 4 Effective Date those that are listed on Schedule 1.01D hereto (each, a
“Guarantor”);
(c)
the Obligations and the Guarantees shall have been secured pursuant to the Security Agreements or other
applicable Collateral Documents by a first-priority security interest in (i) all the Equity Interests of the Borrowers (other than the Parent Borrower) and (ii) all Equity Interests (other than Excluded Equity) held directly by the
Borrowers or any Subsidiary Guarantor in any Wholly Owned Subsidiary, in each case subject to (x) those Liens permitted under clauses (q), (aa) (solely with respect to modifications, replacements, renewals or extensions of Liens
permitted by clauses (q) and (dd) of the definition of “Permitted Liens”) and (dd) of the definition of “Permitted Liens” and (y) any nonconsensual Lien that is permitted under the definition of
“Permitted Liens” and the Administrative Agent shall have 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)
except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the
Guarantees shall have been secured by a perfected security interest (other than in the case of mortgages, to the extent such security interest may be perfected by delivering certificated securities and instruments, filing personal property financing
statements or intellectual property security agreements, or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office) in, and mortgages on,
substantially all tangible and intangible assets of Parent Borrower, the other Borrowers, and each other Guarantor (including, without limitation, accounts receivable, inventory, equipment, investment property, United States IP
rightsRights, intercompany receivables, other general intangibles (including contract
rights), owned (but not leased) real property and proceeds of the foregoing), in each case, with the priority required by the Collateral Documents and all certificates, agreements, documents and
instruments, including Uniform Commercial Code financing statements, required by the Collateral Documents, requirements of Law and reasonably requested by the Collateral 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 and the other provisions of the term “Collateral and Guarantee Requirement,”
shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording; provided that security interests in real property shall be limited to the Mortgaged
Properties;
(e)
none of the Collateral shall be subject to any Liens other than Permitted Liens;
(f)
the Collateral Agent shall have received from the Borrowers (i) counterparts of a Mortgage
with respect to each Material Real Property required to be delivered pursuant to Section 6.10, and/or
Section 6.12, as applicable, duly executed, acknowledged and delivered by the record owner of such property and in a form suitable for recording in
the applicable jurisdiction, (ii) a title insurance policy for such Mortgaged Property (or marked-up title insurance commitment having the effect
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of a title insurance policy) (the “Mortgage Policies”) in an amount reasonably acceptable to the Administrative Agent, insuring the Lien of each
such Mortgage as a valid first priority Lien on the property described therein, free of any other Liens except Permitted Liens, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request and to the
extent available in each applicable jurisdiction, (iii) a Survey with respect to each Mortgaged Property, provided, however, that a Survey shall not be required to the extent that (A) an existing survey together with an
“affidavit of no change” satisfactory to the Title Company is delivered to the Collateral Agent and the Title Company and (B) the Title Company removes the standard survey exception and provides reasonable and customary
survey-related endorsements and other coverages in the applicable Mortgage Policy, (iv) an opinion of local counsel to the Loan Parties in the state in which the Mortgaged Property is located, with respect to the enforceability and perfection
of such Mortgage and any related fixture filings, in form and substance reasonably satisfactory to the Administrative Agent, (v) a completed “Life-of-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 by the applicable Loan Party relating thereto), (vi) if applicable, a copy of, or a certificate as to
coverage under, and a declaration page relating to, the flood insurance policies required by Section 6.06 hereof, each of which (A) shall be
endorsed or otherwise amended to name the Collateral Agent as mortgagee and loss payee, (B) shall (1) identify the addresses of each property located in a special flood hazard area, (2) indicate the applicable flood zone designation,
the flood insurance coverage and the deductible relating thereto and (3) be otherwise in form and substance reasonably satisfactory to the Collateral Agent, and (vii) such existing abstracts, existing appraisals and other existing
documents as the Collateral Agent may reasonably request with respect to any such Mortgaged Property; and
(f)
[reserved]; and
(g)
in the event any Guarantor is added that is organized in a jurisdiction other than the U.S., such Loan Party
shall grant a perfected lien on substantially all of its assets (other than Excluded Property) pursuant to arrangements reasonably agreed between the Administrative Agent and the Parent Borrower subject to customary limitations in such jurisdiction
to be reasonably agreed to between the Administrative Agent and the Parent Borrower.
The foregoing definition shall not
require the creation or perfection of pledges of or security interests in, or the obtaining of the Mortgage Policies or Surveys with respect to, particular assets if and for so long as the AdministrativeCollateral Agent and the Parent Borrower agree in writing that the cost
of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders
therefrom, or the obtaining of mortgage policies, surveys or title insurance with respect to, any owned or
leased real property.
The Administrative Agent may grant extensions of time
for the perfection of security interests in or the obtaining of title insurance and surveys with respect to
particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent Borrower, that perfection cannot
be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
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Notwithstanding the foregoing provisions of this definition or anything in this Agreement or
any other Loan Document to the contrary:
(A) Liens required to be granted from time to time pursuant to the Collateral and Guarantee
Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Administrative Agent and the Parent Borrower;
(B) the Collateral and Guarantee Requirement shall not apply to any Excluded Property;
(C) other
than as set forth in Section 6.16, no deposit account control agreement, securities account control agreement or other control agreements or control arrangements shall be required with
respect to any deposit account, securities account or other asset specifically requiring perfection through control agreements;
(D)
other than as provided in clause (g) above, no actions in any jurisdiction other than the U.S. or that are necessary to comply with the Laws of any jurisdiction other than the U.S. shall be required in order to create any security
interests in assets located, titled, registered or filed outside of the U.S. or to perfect such security interests (it being understood that other than as provided in clause (g) above, there shall be no security agreements, pledge
agreements, or share charge (or mortgage) agreements governed under the Laws of any jurisdiction other than the U.S.);
(E) general
statutory limitations, financial assistance, corporate benefit, capital maintenance rules, fraudulent preference, “thin capitalization” rules, retention of title claims and similar principle may limit the ability of a Foreign Subsidiary
to provide a Guarantee or Collateral or may require that the Guarantee or Collateral be limited by an amount or otherwise, in each case as reasonably determined by the Parent Borrower in consultation with the Administrative Agent; and
(F) no stock certificates of Immaterial Subsidiaries shall be required to be delivered to the Collateral Agent.; and
(G) no
Mortgages shall be required to be delivered in respect of any owned or leased real property.
“Collateral Documents” means, collectively, the Security Agreement, the Mortgages, each of the
mortgages, collateral assignments, Security Agreement Supplements, security agreements, pledge
agreements or other similar agreements delivered to the Collateral Agent and the Lenders pursuant to Section 4.01(a)(iii), Section 6.10 or Section 6.12, the Guaranty and each of the other agreements, instruments
or documents that creates or purports to create a Lien or Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties.
“Commitment” means a Revolving Credit Commitment, an Extended Revolving Credit Commitment, an Incremental Revolving
Commitment, a Refinancing Revolving Commitment or any combination thereof, as the context may require.
“Commitment
Fee” has the meaning provided in Section 2.09(a).
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“Committed Loan Notice” means a notice of (a) a Revolving Credit
Borrowing, (b) a conversion of Loans from one Type to the other or (c) a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A-1 or Exhibit A-2, as applicable (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 Parent Borrower.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et
seq.), as amended from time to time, and any successor statute.
“Compensation Period” has the meaning specified in
Section 2.12(c)(ii).
“Compliance Certificate” means a certificate substantially in the form of
Exhibit D.
“Conforming Changes” means, with respect to the use, administration of or any conventions
associated with SOFR, SONIA, EURIBOR, TIBOR, BBSY,
CDORCORRA or any proposed Successor Rate for any currency or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR”, “SONIA”,
“EURIBOR”, “TIBOR”, “BBSY”, “CDOR”,CORRA”, “Term CORRA”, “Rate Determination Date”, “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the
definition of “Business Day”, “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability of breakage provisions and length of lookback periods)
as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent
with market practice for such currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for such currency
exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated)
or that are franchise Taxes or branch profits Taxes.
“Consolidated
Cash Balance” means, at any time, the aggregate amount of cash and Cash Equivalents of the Parent Borrower and its Subsidiaries which do not appear as “restricted” on the consolidated balance sheet of the Parent Borrower,
excluding (i) any cash or Cash Equivalents of Accendra Health Foundation or (to the extent held pursuant to statutory or regulatory authority applicable thereto) any Captive Insurance Subsidiary and (ii) any cash or Cash Equivalents, to
the extent that the application of such cash or Cash Equivalents is limited by the terms of a Qualified Securitization Transaction.
“Consolidated
Cash Balance Limit” means $50,000,000.
“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 amortization or write-off of (i) intangible assets and
non-cash organization costs, (ii) deferred financing and debt issuance fees, costs and expenses, (iii) capitalized expenditures
21
(including Capitalized Software Expenditures), customer acquisition costs and incentive payments, media development costs, conversion costs and contract acquisition costs, the amortization of
original issue discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities and (iv) capitalized fees related to any Qualified Securitization Transactions, of
such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP and any write down of assets or asset value carried on the balance sheet.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such
period:
(1)
increased (without duplication) by:
(a)
Fixed Charges of such Person for such period (including (w) non-cash rent expense, (x) net payments
and losses or any obligations on any Hedging Obligations or other derivative instruments, (y) bank, letter of credit and other financing fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from
the definition of “Consolidated Interest Expense” and any non-cash interest expense), to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(b)
(x) provision for Taxes based on income, profits, revenue or capital, including federal, foreign, state,
provincial, territorial, local, unitary, excise, property, franchise, value added and similar Taxes (such as, but not limited to, Delaware franchise tax, 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, additions to Tax and interest related to such Taxes or arising from Tax examinations) and similar Taxes of
such Person paid or accrued during such period (including in respect of repatriated funds), (y) any distributions made to an Ultimate Parent Entity with respect to the foregoing and (z) the net tax expense associated with any adjustments
made pursuant to the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(c)
Consolidated Depreciation and Amortization Expense of such Person for such period to the extent deducted (and
not added back) in computing Consolidated Net Income; plus
(d)
any fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to
any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions), Investment, Restricted Payment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be
incurred by this Agreement (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Amendment No. 2 Effective Date)), including
(i) such fees, expenses or charges (including rating agency fees, consulting fees and other related
22
expenses and/or letter of credit or similar fees) related to the offering or incurrence of, or ongoing administration of this Agreement, the Senior Notes, the
2026 Senior Secured Notes, the Term Loan Credit Agreement, any other credit facilities, any fees incurred in connection with a Qualified Securitization
Transaction and the, the Closing Date Transactions, the Transactions and the Amendment No. 4 Transactions,
including Transaction Expenses, and (ii) any amendment, waiver or other modification of this Agreement, the Senior Notes, the 2026 Senior Secured Notes, the
Term Loan Credit Agreement, any agreement entered into with respect to a Qualified Securitization Transaction, any other credit facilities, any fees incurred in connection with a Qualified Securitization Transaction, any other
Indebtedness or any Equity Offering, in each case, whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(e)
(i) the amount of any restructuring charge, accrual, reserve (and adjustments to existing reserves) or expense,
integration cost, inventory optimization programs or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives and tax restructurings) that is deducted (and not added back) in
such period in computing Consolidated Net Income, including any costs incurred in connection with acquisitions or divestitures after the Amendment No. 2 Effective Date, any severance, retention, signing bonuses, relocation, recruiting and other
employee related costs, costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employment benefit plans (including any settlement of pension liabilities), costs related to entry into new markets
(including unused warehouse space costs) and new product introductions (including labor costs and scrap costs), systems development and establishment costs, operational and reporting systems, technology initiatives, contract termination costs,
future lease commitments and costs related to the opening and closure and/or consolidation of facilities (including severance, rent termination, moving and legal costs) and to exiting lines of business and consulting fees incurred with any of the
foregoing and (ii) fees, costs and expenses associated with acquisition related litigation and settlement thereof; plus
(f)
any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such
period including (i) non-cash losses on the sale of assets and any write-offs or write-downs, deferred revenue or impairment charges, (ii) impairment charges, amortization (or write offs) of financing costs (including debt discount, debt
issuance costs and commissions and other fees associated with Indebtedness, including the Senior Notes, the 2026 Senior Secured Notes, this Agreement and the
Term Loan Credit Agreement) of such Person and its Subsidiaries and/or (iii) the impact of acquisition method accounting adjustment and any non-cash write-up, write-down or write-off with respect to re-valuing assets and liabilities in
connection with the Transactions or any Investment, deferred revenue or any effects of adjustments resulting from the application of purchase accounting, purchase price accounting (including any step-up in
23
inventory and loss of profit on the acquired inventory) (provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash
items in any future period, (A) the Parent Borrower may elect not to add back such non-cash charge, expense or loss in the current period and (B) to the extent the Parent Borrower elects to add back such non-cash charge, the cash payment
in respect thereof in such future period shall be subtracted from Consolidated EBITDA when paid), or other items classified by the Parent Borrower as special items less other non-cash items of income increasing Consolidated Net Income (excluding any
amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period); plus
(g)
the amount of pro forma “run rate” cost savings (including cost savings with respect to salary,
benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions,
other operating improvements (including the entry into material contracts or arrangements), and initiatives and synergies (including, to the extent applicable, from (i) the Transactions, (ii) the effect of new customer contracts or
projects and/or (iii) increased pricing or volume in existing contracts) (it is understood and agreed that “run rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or
expected to be taken, net of the amount of actual benefits realized during such period from such actions) projected by the Parent Borrower in good faith to be reasonably anticipated to be realizable or a plan for realization shall have been
established within 2412 months of the date thereof (including from any actions taken in whole or in part prior to
such date), which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings (including cost savings with respect to salary, benefit and other direct savings
resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions, other operating improvements and
initiatives and synergies had been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions; provided that
(A) such costs savings are reasonably identifiable and factually supportable (in the good faith determination of the Parent Borrower) and (B) the aggregate
increase to Consolidated EBITDA for any period pursuant to this clause (g) shall not exceed 30.0% of Consolidated EBITDA for such period (calculated after giving effect to any increase pursuant to this clause (g)); provided, further,
that the foregoing clause (B) shall only apply to clause (ii) and (iii) in this clause (g); plus
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(h)
any costs or expenses incurred by the Parent Borrower or a Restricted Subsidiary or a Ultimate Parent Entity
pursuant to any management equity plan, stock option plan, phantom equity plan, profits interests or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment,
termination or severance agreement, or any stock subscription or equityholder agreement, and any costs or expenses in connection with the roll-over, acceleration or payout of Capital Stock held by management, to the extent that such costs or
expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Parent Borrower or Net Cash Proceeds of an issuance of Capital Stock (other than Disqualified Equity Interests) of the Parent Borrower, in each case, to
the extent deducted (and not added back) in computing Consolidated Net Income; plus
(i)
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
(j)
any net loss included in the Consolidated Net Income attributable to non-controlling or minority interests
pursuant to the application of Accounting Standards Codification Topic 810-10-45 (or any successor provision or other financial accounting standard having a similar result or effect); plus
(k)
the amount of any non-controlling or minority interest expense consisting of Subsidiary income attributable to
non-controlling or minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(l)
(i) unrealized or realized foreign exchange losses resulting from the impact of foreign currency changes and
(ii) gains and losses due to fluctuations in currency values and related Tax effects determined in accordance with GAAP, in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(m)
with respect to any joint venture, an amount equal to the proportion of those items described in clauses
(a), (b) and (c) above relating to such joint venture corresponding to the Parent Borrower’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income
(determined as if such joint venture were a Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(n)
the amount of any costs, charges or expenses relating to payments made to stock appreciation or similar rights,
stock option, restricted stock, phantom equity, profits interests or other interests or rights holders of the Parent Borrower or any of its Subsidiaries or any Ultimate Parent Entity in connection with, or as a result of, any distribution being made
to equityholders of such Person or any of its Subsidiaries or any Ultimate Parent Entity, which payments are being made to compensate such holders as though they were equityholders at the time of, and entitled to share in, such distribution, in each
case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
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(o)
any due diligence quality of earnings report from time to time prepared with respect to the target of an
acquisition or Investment by a nationally recognized accounting firm; plus
(p)
losses, charges and expenses related to the pre-opening and opening of new locations, and start-up period prior
to opening, that are operated, or to be operated, by the Parent Borrower or any Restricted Subsidiary; provided that the aggregate increase to Consolidated EBITDA for any period pursuant to this clause
(p) and clause (r) below shall not exceed 10.0% of Consolidated EBITDA for such period (calculated after giving effect to any increase pursuant to this clause (p) and clause (r) below); plus
(q)
rent expense as determined in accordance with GAAP not actually paid in cash during such period (net of rent
expense paid in casecash during such period over and above rent expense as determined in accordance with GAAP);
plus
(r)
losses, charges and expenses related to a new location, plant or facility until the date that is 2412 months after the date of commencement of construction or the date of acquisition thereof, as the case may be; provided that the aggregate increase to Consolidated EBITDA for any period pursuant to this clause (r) and clause (p) above shall not exceed 10.0% of Consolidated EBITDA for such period (calculated after
giving effect to any increase pursuant to this clause (r) and clause (p) above); plus
(s)
any non-cash increase in expense resulting from the revaluation of inventory (including any impact of changes
to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments; plus
(t)
the net increase (which, for the avoidance of doubt, shall not be negative), if any, of the difference between:
(i) the deferred revenue of such Person and its Restricted Subsidiaries, as of the last day of such period (the “Determination Date”) and (ii) the deferred revenue of such Person and its Restricted Subsidiaries as of the
date that is 12 months prior to the Determination Date; plus
(u)
any fees, costs and expenses incurred in connection with the adoption or implementation of Accounting Standards
Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect), and any non-cash losses or charges resulting from the application of
Accounting Standards Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect); plus
(v)
any fees, costs, expenses or charges related to or recorded in cost of sales to recognize cost on a
last-in-first-out basis; and
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(2) decreased (without duplication) by extraordinary or other non-recurring, income tax
credits or non-cash income 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 Consolidated EBITDA
in any prior
period.,
provided
that, the aggregate amount included in the determination of Consolidated EBITDA for any period pursuant to clause 4(a) of the definition of Consolidated Net Income (only in respect of cash items) plus the aggregate increase to Consolidated
EBITDA for such period pursuant to clauses (e) (but in the case of clause (e), only in respect of cash items), (g) (but in the case of clause (g), only in respect of sub-clauses (ii) and (iii) thereof), (p) and (r) of
clause (1) above shall not exceed 15.0% of Consolidated EBITDA for such period (calculated in each case after giving effect to such increases).
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 Parent Borrower 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 of by the Parent Borrower 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) 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. For purposes of determining the Consolidated EBITDA for any period, 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, closed or classified as discontinued operations by the Parent Borrower 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) (it being
understood that any Person, property, business or asset classified as discontinued operations by the Parent Borrower or any Restricted Subsidiary during such period as a result of the entry into a binding agreement to sell such Person, property,
business or asset shall not constitute a “Sold Entity or Business” until such sale is actually consummated).
“Consolidated Covenant EBITDA” means, with respect to any Person for any period, the Consolidated Net
Income of such Person for such period:
(1)
increased (without duplication)
by:
(a)
Fixed Charges of such Person for
such period (including (w) non-cash rent expense, (x) net payments and losses or any obligations on any Hedging Obligations or other derivative instruments, (y) bank, letter of credit and
other financing fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from the definition of
“Consolidated Interest Expense” and any non-cash interest expense), to the extent deducted (and not added back) in computing Consolidated Net Income; plus
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(b)
(x) provision for Taxes
based on income, profits, revenue or capital, including federal, foreign, state, provincial, territorial, local, unitary, excise, property, franchise, value added and similar Taxes (such as, but not limited to, Delaware franchise tax, 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, additions to Tax and interest
related to such Taxes or arising from Tax examinations) and similar Taxes of such Person paid or accrued during such period (including in respect of repatriated funds), (y) any distributions made to an Ultimate Parent Entity with respect to the
foregoing and (z) the net tax expense associated with any adjustments made pursuant to the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income;
plus
(c)
Consolidated Depreciation and
Amortization Expense of such Person for such period to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(d)
any fees, costs, expenses or
charges (other than Consolidated Depreciation and Amortization Expense) related to any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions), Investment, Restricted Payment, acquisition,
disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Amendment No. 2
Effective Date)), including (i) such fees, expenses or charges (including rating agency fees, consulting fees and other related expenses and/or letter of credit or similar fees) related to the offering or incurrence of, or ongoing
administration of this Agreement, the Senior Notes, the 2026 Senior Secured Notes, the Term Loan Credit Agreement, any other credit facilities, any fees incurred in connection with a Qualified Securitization Transaction, the Closing Date
Transactions, the Transactions and the Amendment No. 4 Transactions, including Transaction Expenses, and (ii) any amendment, waiver or other modification of this Agreement, the Senior Notes, the 2026 Senior Secured Notes, the Term Loan
Credit Agreement, any agreement entered into with respect to a Qualified Securitization Transaction, any other credit facilities, any fees incurred in connection with a Qualified Securitization Transaction, any other Indebtedness or any Equity
Offering, in each case, whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
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(e)
(i) the amount of any
restructuring charge, accrual, reserve (and adjustments to existing reserves) or expense, integration cost, inventory optimization programs or other business optimization expense or cost (including charges directly related to the implementation of
cost-savings initiatives and tax restructurings) that is deducted (and not added back) in such period in computing Consolidated Net Income, including any costs incurred in connection with acquisitions or divestitures after the Amendment No. 2
Effective Date, any severance, retention, signing bonuses, relocation, recruiting and other employee related costs, costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employment benefit plans
(including any settlement of pension liabilities), costs related to entry into new markets (including unused warehouse space costs) and new product introductions (including labor costs and scrap costs), systems development and establishment costs,
operational and reporting systems, technology initiatives, contract termination costs, future lease commitments and costs related to the opening and closure and/or consolidation of facilities (including severance, rent termination, moving and legal
costs) and to exiting lines of business and consulting fees incurred with any of the foregoing and (ii) fees, costs and expenses associated with acquisition related litigation and settlement thereof; plus
(f)
any other non-cash charges,
write-downs, expenses, losses or items reducing Consolidated Net Income for such period including (i) non-cash losses on the sale of assets and any write-offs or write-downs, deferred revenue or impairment charges, (ii) impairment charges,
amortization (or write offs) of financing costs (including debt discount, debt issuance costs and commissions and other fees associated with Indebtedness, including the Senior Notes, the 2026 Senior Secured Notes, this Agreement and the Term Loan
Credit Agreement) of such Person and its Subsidiaries and/or (iii) the impact of acquisition method accounting adjustment and any non-cash write-up, write-down or write-off with respect to re-valuing assets and liabilities in connection with
the Transactions or any Investment, deferred revenue or any effects of adjustments resulting from the application of purchase accounting, purchase price accounting (including any step-up in inventory and loss of profit on the acquired inventory)
(provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash items in any future period, (A) the Parent Borrower may elect not to add back such non-cash charge, expense or
loss in the current period and (B) to the extent the Parent Borrower elects to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated Covenant EBITDA when paid), or other
items classified by the Parent Borrower as special items less other non-cash items of income increasing Consolidated Net Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the
extent it represents a receipt of cash in any future period); plus
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(g)
the amount of pro forma
“run rate” cost savings (including cost savings with respect to salary, benefit and other direct savings resulting from workforce reductions and
facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions, other operating improvements (including the entry into material contracts
or arrangements), and initiatives and synergies (including, to the extent applicable, from (i) the Transactions, (ii) the effect of new customer contracts or projects and/or (iii) increased pricing or volume in existing contracts) (it
is understood and agreed that “run rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken, net of the amount of actual benefits realized during such
period from such actions) projected by the Parent Borrower in good faith to be reasonably anticipated to be realizable or a plan for realization shall have been established within the Specified Period from the date thereof (including from any
actions taken in whole or in part prior to such date), which will be added to Consolidated Covenant EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings (including cost savings with respect
to salary, benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense
reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions; provided that such costs
savings are reasonably identifiable and factually supportable (in the good faith determination of the Parent Borrower); plus
(h)
any costs or expenses incurred by
the Parent Borrower or a Restricted Subsidiary or a Ultimate Parent Entity pursuant to any management equity plan, stock option plan, phantom equity plan, profits interests or any other management, employee benefit or other compensatory plan or
agreement (and any successor plans or arrangements thereto), employment, termination or severance agreement, or any stock subscription or equityholder agreement, and any costs or expenses in connection with the roll-over, acceleration or payout of
Capital Stock held by management, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Parent Borrower or Net Cash Proceeds of an issuance of Capital Stock (other than
Disqualified Equity Interests) of the Parent Borrower, in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(i)
cash receipts (or any netting
arrangements resulting in reduced cash expenditures) not representing Consolidated Covenant 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
Covenant EBITDA pursuant to clause (2) below for any previous period and not added back; plus
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(j)
any net loss included in the
Consolidated Net Income attributable to non-controlling or minority interests pursuant to the application of Accounting Standards Codification Topic 810-10-45
(or any successor provision or other financial accounting standard having a similar result or effect); plus
(k)
the amount of any non-controlling
or minority interest expense consisting of Subsidiary income attributable to non-controlling or minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(l)
(i) unrealized or realized
foreign exchange losses resulting from the impact of foreign currency changes and (ii) gains and losses due to fluctuations in currency values and related Tax effects determined in accordance with GAAP, in each case, to the extent deducted (and
not added back) in computing Consolidated Net Income; plus
(m)
with respect to any joint
venture, an amount equal to the proportion of those items described in clauses (a), (b) and (c) above relating to such joint venture corresponding to the Parent Borrower’s and its Restricted Subsidiaries’ proportionate share of
such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(n)
the amount of any costs, charges
or expenses relating to payments made to stock appreciation or similar rights, stock option, restricted stock, phantom equity, profits interests or other interests or rights holders of the Parent Borrower or any of its Subsidiaries or any Ultimate
Parent Entity in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its Subsidiaries or any Ultimate Parent Entity, which payments are being made to compensate such holders as though they were
equityholders at the time of, and entitled to share in, such distribution, in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(o)
any due diligence quality of
earnings report from time to time prepared with respect to the target of an acquisition or Investment by a nationally recognized accounting firm; plus
(p)
losses, charges and expenses
related to the pre-opening and opening of new locations, and start-up period prior to opening, that are operated, or to be operated, by the Parent Borrower or any Restricted Subsidiary; plus
(q)
rent expense as determined in
accordance with GAAP not actually paid in cash during such period (net of rent expense paid in cash during such period over and above rent expense as determined in accordance with GAAP); plus
(r)
losses, charges and expenses
related to a new location, plant or facility until the date that is the last day of the Specified Period after the date of commencement of construction or the date of acquisition thereof, as the case may be; plus
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(s)
any non-cash increase in expense
resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments; plus
(t)
the net increase (which, for the
avoidance of doubt, shall not be negative), if any, of the difference between: (i) the deferred revenue of such Person and its Restricted Subsidiaries, as of the Determination Date and (ii) the deferred revenue of such Person and its
Restricted Subsidiaries as of the date that is 12 months prior to the Determination Date; plus
(u)
any fees, costs and expenses
incurred in connection with the adoption or implementation of Accounting Standards Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or
effect), and any non-cash losses or charges resulting from the application of Accounting Standards Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a
similar result or effect); plus
(v)
any fees, costs, expenses or
charges related to or recorded in cost of sales to recognize cost on a last-in-first-out basis; and
(2) decreased (without duplication) by extraordinary or other non-recurring, income tax credits or non-cash income 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 Consolidated Covenant EBITDA in any prior
period,
provided that, the aggregate amount included in the determination of Consolidated Covenant EBITDA for any period pursuant to
clause 4(a) of the definition of Consolidated Net Income (only in respect of cash items) plus the aggregate increase to Consolidated Covenant EBITDA for such period pursuant to clauses (e) (but in the case of clause (e), only in respect
of cash items), (g) (but in the case of clause (g), only in respect of sub-clauses (ii) and (iii) thereof), (p) and (r) of clause (1) above shall not exceed the Shared Cap of Consolidated Covenant EBITDA for such period
(calculated in each case after giving effect to such increases; provided that if such calculation includes any Scheduled Addbacks, such calculations shall be calculated, in each case, prior to giving effect to any such increases as a result of such
Scheduled Addbacks) provided further that for any period ending on or after the Amendment No. 4 Effective Date through and including September 30, 2028, the Scheduled Addbacks included in the determination of Consolidated Covenant EBITDA
shall not be subject to the Shared Cap.
There shall be included in determining Consolidated Covenant EBITDA for any period, without duplication, (A) the
Acquired EBITDA of any Acquired Entity or Business, and the Acquired EBITDA of any 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) 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. For purposes of determining the Consolidated Covenant
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EBITDA for any period, there shall be excluded in determining
Consolidated Covenant EBITDA for any period the Disposed EBITDA of any Sold Entity or Business and the Disposed EBITDA of any 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) (it being understood that any Person, property, business or asset classified as discontinued operations by the Parent
Borrower or any Restricted Subsidiary during such period as a result of the entry into a binding agreement to sell such Person, property, business or asset shall not constitute a “Sold Entity or Business” until such sale is actually
consummated).
As used in this definition of “Consolidated Covenant EBITDA”: (a) “Scheduled Addbacks”
means those certain amounts that were disclosed to the Administrative Agent on or prior to the Amendment No. 4 Effective Date, (b) “Shared Cap” means, for any determination of Consolidated Covenant EBITDA for any period
of four consecutive fiscal quarters ending on the following dates or during the following periods (as applicable), the following percentage of Consolidated Covenant EBITDA: (i) ending on or after the Amendment No. 4 Effective Date through
December 31, 2027: 30.0%, (ii) ending on March 31, 2028 and June 30, 2028: 25.0%, (iii) ending on September 30, 2028: 20.0%, and (iv) ending on or after December 31, 2028: 15.0%, and
(c) “Specified Period” means, for any determination of Consolidated Covenant EBITDA for any period of four consecutive fiscal quarters ending on the following dates or during the following periods (as applicable), the
following look-forward time period: (i) ending on or after the Amendment No. 4 Effective Date through December 31, 2027: 24 months, (ii) ending on March 31, 2028: 21 months, (iii) ending on June 30, 2028: 18
months, (iv) ending on September 30, 2028: 15 months and (v) ending on or after December 31, 2028: 12 months.
“Consolidated Group” means the Parent Borrower and its Subsidiaries.
“Consolidated
Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date of determination, to
(b) Consolidated Interest Expense consisting solely of all interest expense payments made in cash, including the cash interest component under Capitalized Leases (excluding any operating leases) and the cash interest component under
Securitization Transactions for the period of four consecutive fiscal quarters most recently ended on or prior to such date of determination.
“Consolidated Interest
Covenant Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Covenant EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date of determination, to (b) Consolidated Interest Expense consisting solely of all interest expense payments made in cash, including the cash interest component under Capitalized Leases (excluding any
operating leases) and the cash interest component under Securitization Transactions for the period of four consecutive fiscal quarters most recently ended on or prior to such date of determination.
“Consolidated Interest Expense” means, for any period, all interest expense, including the amortization of debt discount
and premium, the interest component under Capitalized Leases and the implied interest component under Securitization Transactions (including, without limitation, the discount in connection with the sale of Receivables and Receivables Related Assets
in connection with a Qualified Securitization Transaction), in each case for the members of the Consolidated Group on a consolidated basis determined in accordance with GAAP.
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“Consolidated Net Income” means, with respect to any Person for any
period, the net income (loss) of such Person and its Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided,
however, that there will not be included in such Consolidated Net Income:
(1) any net income (loss) of any Subsidiary if such
Person is not a Restricted Subsidiary (including any net income (loss) from investments recorded in such Person under the equity method of accounting), except that the Parent Borrower’s equity in the net income of any such Person for such
period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed (or to the extent converted into cash or Cash Equivalents) or that (as determined by the Parent Borrower in its
reasonable discretion) could have been distributed by such Person during such period to the Parent Borrower or a Restricted Subsidiary as a dividend or other distribution or return on investment;
(2) solely for the purpose of determining the Available
Amount hereof, any net income (loss) of any Restricted Subsidiary (other than the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Borrowers or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation
applicable to such Restricted Subsidiary or its stockholders (other than (a) restrictions that have been waived or otherwise 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), and (b) restrictions pursuant to this Agreement, the Term Loan Credit Agreement, the Senior Notes, the Indentures or other similar indebtedness containing substantially similar
restrictions), except that the Parent Borrower’s equity in the net income of any such Restricted Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually
distributed (or to the extent converted, or having the ability to be converted, into cash or Cash Equivalents) or that could have been distributed by such Restricted Subsidiary during such period to the Parent Borrower or another Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation contained in this clause);
(2)
[reserved];
(3) any gain (or loss) (a) in respect of facilities no longer
used or useful in the conduct of the business of the Parent Borrower or its Restricted Subsidiaries, abandoned, transferred, closed, disposed or discontinued operations, (b) on disposal, abandonment or discontinuance of disposed, abandoned,
transferred, closed or discontinued operations, and (c) attributable to asset dispositions, abandonments, sales or other dispositions of any asset (including pursuant to any Sale Leaseback) or the designation of an Unrestricted Subsidiary other
than in the ordinary course of business;
(4) (a) any extraordinary, exceptional, unusual or nonrecurring loss, charge or expense,
Transaction Expenses, Public Company Costs, restructuring and duplicative running costs, restructuring charges or reserves (whether or not classified as restructuring expense on the consolidated financial statements), relocation costs, start-up or
initial costs for any project or new production line, division or new line of business, integration and facilities’ or bases’ 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 Borrower, a Subsidiary or an Ultimate Parent Entity had entered into with employees of the Parent Borrower, a Subsidiary or an
Ultimate Parent Entity, costs relating to pre-opening,
34
opening and conversion costs for facilities, losses, costs or cost inefficiencies related to project terminations, facility or property disruptions or shutdowns (including due to work stoppages,
natural disasters and epidemics), signing, retention and completion bonuses (including management bonus pools), recruiting costs, costs incurred in connection with any strategic or cost savings initiatives, transition costs, contract terminations,
litigation and arbitration fees, costs and charges, expenses in connection with one-time rate changes, costs incurred with acquisitions, investments and dispositions (including travel and out-of-pocket costs, human resources costs (including
relocation bonuses), litigation and arbitration costs, charges, fees and expenses (including settlements), management transition costs, advertising costs) and 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 operating expenses attributable to the implementation of strategic or cost-savings initiatives, and curtailments or modifications to pension and post-retirement
employee benefit plans (including any settlement of pension liabilities and charges resulting from changes in estimates, valuations and judgments) and professional, legal, accounting, consulting and other service fees incurred with any of the
foregoing and (b) any charge, expense, cost, accrual or reserve of any kind associated with acquisition related litigation and settlements thereof;
(5) (a) at the election of the Parent Borrower with respect to any quarterly period, the cumulative effect (including charges, accruals,
expenses and reserves) of a change in law, regulation or accounting principles and changes as a result of the adoption, implementation or modification of accounting policies, including the adoption or implementation of last-in-first-out basis
accounting standards, (b) subject to the last paragraph of the definition of “GAAP,” the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during
such period (including any impact resulting from an election by the Parent Borrower to apply IFRS or other accounting changes), and (c) any costs, charges, losses, fees or expenses in connection with the implementation or tracking of such
changes or modifications specified in the foregoing clauses (a) and (b), in each case as reasonably determined by the Parent Borrower;
(6) (a) any equity-based or non-cash compensation or similar charge, cost or expense or reduction of revenue, including any such charge, cost,
expense or reduction arising from any grant of stock, stock appreciation or similar rights, stock options, restricted stock, phantom equity, profits interests or other interests, or other rights or equity- or equity-based incentive programs
(“equity incentives”), any income (loss) associated with the equity incentives or other long-term incentive compensation plans (including under deferred compensation arrangements of the Parent Borrower, any Ultimate Parent Entity or
Subsidiary and any positive investment income with respect to funded deferred compensation account balances), roll-over, acceleration or payout of Capital Stock by employees, directors, officers, managers, contractors, consultants, advisors or
business partners (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Borrower, any Ultimate Parent Entity or Subsidiary, and any cash awards granted to employees of the Parent Borrower and its
Subsidiaries in replacement for forfeited awards, (b) any non-cash losses attributable to deferred compensation plans or trusts or realized in such period in connection with adjustments to any employee benefit plan due to changes in estimates,
actuarial assumptions, valuations, studies or judgments, (c) non-cash compensation expense resulting from the application of Accounting Standards Codification Topic 718, Compensation—Stock Compensation or Accounting Standards Codification
Topics 505-50 Equity-Based Payments to Non-Employees (or any successor provision or other financial
35
accounting standard having a similar result or
effect), and (d) any net pension or post-employment benefit
costs representing amortization of unrecognized prior service costs, actuarial losses, amortization of such amounts arising in prior periods, amortization of the unrecognized obligation (and loss or cost) existing at the date of initial application
of Statement of Financial Accounting Standards No. 87, 106 and 112 (or any successor provision or other financial accounting standard having a similar result or effect), and any other item of a similar nature;
(7) any income (loss) from the extinguishment, conversion or cancellation of Indebtedness, Hedging Obligations or other derivative instruments
(including deferred financing costs written off, premiums paid or other expenses incurred);
(8) any unrealized or realized gains or losses
in respect of any Hedging Obligations or any ineffectiveness recognized in earnings related to hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions;
(9) any fees, losses, costs, expenses or charges incurred during such period (including any transaction, retention bonus or similar payment),
or any amortization thereof for such period, in connection with (a) any acquisition, recapitalization, Investment, Disposition, disposition, issuance or repayment of Indebtedness (including such fees, expense or charges related to the offering,
issuance and rating of the Senior Notes, the 2026 Senior Secured Notes, other securities and any credit facilities), issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of the Senior
Notes, the 2026 Senior Secured Notes, other securities and
any credit facilities), in each case, including the Transactions and the Amendment No. 4 Transactions, any such transaction consummated prior to, on or after the Amendment No. 2 Effective 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 (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Accounting Standards
Codification Topic 805—Business Combinations (or any successor provision or other financial accounting standard having a similar result or effect) and any adjustments resulting from the application of Accounting Standards Codification Topic
460—Guarantees (or any successor provision or other financial accounting standard having a similar result or effect) or any related pronouncements) and (b) complying with the requirements under, or making elections permitted by, the
documentation governing any Indebtedness;
(10) any unrealized or realized gain or loss resulting in such period from currency
translation increases or decreases 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 risk), intercompany loans, accounts
receivables, accounts payable, intercompany balances, other balance sheet items, Hedging Obligations or other obligations of the Parent Borrower or any Restricted Subsidiary owing to the Parent Borrower or any Restricted Subsidiary and any other
realized or unrealized foreign exchange gains or losses relating to the translation of assets and liabilities denominated in foreign currencies;
(11) any unrealized or realized income (loss) or non-cash expense attributable to movement in mark-to-market valuation of foreign currencies,
Indebtedness or derivative instruments pursuant to GAAP;
36
(12) 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 those required or permitted by Accounting Standards Codification Topic 805–Business Combinations and Accounting
Standards Codification 350–Intangibles-Goodwill and Other (or any successor provision or other financial accounting standard having a similar result or effect)) and related pronouncements, 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, leases, goodwill, intangible assets, in-process research and development, deferred revenue (including deferred
costs related thereto and deferred rent) and debt line items thereof, resulting from the application of acquisition method accounting, recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions and the Amendment No. 4 Transactions or any consummated acquisition
(by merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment or the amortization or write-off or write-down of any amounts thereof;
(13) any impairment charge, write-off or write-down, including impairment charges, write-offs or write-downs related to intangible assets,
long-lived assets, goodwill, investments in debt or equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) and investments recorded using the equity method or as a result of a change
in law or regulation, in connection with any disposition of assets and the amortization of intangibles arising pursuant to GAAP;
(14)
(a) accruals and reserves (including contingent liabilities) that are established or adjusted within 18 months after the closing of any acquisition or disposition that are so required to be established or adjusted as a result of such
acquisition or disposition in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, (b) charges, accruals, expenses and reserves as a result of adoption or modification of accounting policies, shall be
excluded, and (c) earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise (and including deferred performance incentives in connection with any acquisition (by
merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment whether or not a service component is required from the transferor or its related party)) and adjustments thereof and purchase price adjustments;
(15) any income (loss) related to any realized or unrealized gains and losses resulting from Hedging Obligations or embedded derivatives that
require similar accounting treatment (including embedded derivatives in customer contracts), and the application of Accounting Standards Codification Topic 815—Derivatives and Hedging (or any successor provision or other financial accounting
standard having a similar result or effect) and its related pronouncements or mark to market movement of non-U.S. currencies, Indebtedness, derivatives instruments or other financial instruments pursuant to GAAP, including Accounting Standards
Codification Topic 825—Financial Instruments (or any successor provision or other financial accounting standard having a similar result or effect) or an alternative basis of accounting applied in lieu of GAAP;
(16) any non-cash expenses, accruals or reserves related to adjustments to historical Tax exposures and any deferred tax expense associated
with Tax deductions or net operating losses arising as a result of the Transactions and the Amendment No. 4
Transactions, or the release of any valuation allowances related to such item;
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(17) the amount of (x) board of director (or equivalent thereof) fees, refinancing,
transaction, advisory and other fees (including exit and termination fees) and indemnities, costs and expenses paid or accrued in such period to (or on behalf of) any member of the board of directors (or the equivalent thereof) of the Parent
Borrower, any of its Subsidiaries or any Ultimate Parent Entity, and (y) payments made to option holders of the Parent Borrower or any Ultimate Parent Entity in connection with, or as a result of, any distribution being made to equityholders of
such Person or its Ultimate Parent Entity, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, including any cash consideration for any
repurchase of equity;
(18) the amount of loss or discount on sale of Receivables Related Assets and related assets in connection with a
Qualified Securitization Transaction; and
(19) at the election of the Parent Borrower 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.
In
addition, to the extent not already excluded (or included, as applicable) in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall be
increased by the amount of: (i) any expenses, charges or losses that are reimbursed by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets
permitted hereunder, or, so long as the Parent Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such evidence (net of any amount so added back in a
prior period to the extent not so reimbursed within the applicable 365-day period) and (ii) to the extent covered by insurance (including business interruption insurance) and actually reimbursed, or, so long as the Parent Borrower has made a
determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such evidence (net of any amount so added
back in a prior period to the extent not so reimbursed within the applicable 365-day period), expenses, charges or losses with respect to liability or Casualty Events or business interruption. Consolidated Net Income shall be reduced by the amount
of distributions actually made to any Ultimate Parent Entity in respect of such period in accordance with Section 7.06(c) as though such amounts had been paid as taxes directly by such Person for such periods.
“Consolidated Total Assets” means, as of any date, the sum of (a) all items which would be classified as assets of the
members of the Consolidated Group on a consolidated basis determined in accordance with GAAP plus (b) to the extent not included in the foregoing clause (a), the aggregate net book value of all Receivables transferred to a
Securitization Subsidiary or other Person in connection with a Qualified Securitization Transaction.
“Consolidated Total
Debt” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness of the Parent Borrower and its Restricted Subsidiaries outstanding on such date, determined 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 Closing Date Transactions, the Transactions or any Permitted Acquisition), consisting of Indebtedness for
borrowed money, Disqualified Equity Interests, Capitalized Lease Obligations, Indebtedness in respect of any Qualified Securitization Transaction and debt obligations evidenced by bonds, debentures, notes, loan agreements or other similar
instruments minus (b) the aggregate amount of unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens other than any nonconsensual Lien that is permitted under the Loan Documents and Liens of the Collateral
Agent for the benefit of the Obligations and for the benefit
38
of any Indebtedness secured on a pari passu basis with the Liens of the Collateral Agent pursuant to an Acceptable Intercreditor Agreement) included in the consolidated balance sheet of
the Parent Borrower and its Restricted Subsidiaries as of such date, which aggregate amount of cash and Cash Equivalents shall be determined without giving pro forma effect to the proceeds of Indebtedness incurred on such date; provided that
Consolidated Total Debt shall not include obligations under Swap Contracts entered into in the ordinary course of business and not for speculative purposes.
“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.
“Contribution
Indebtedness” means unsecured Indebtedness of the Borrowers or any Restricted Subsidiary in an amount equal to the aggregate amount of cash contributions made after the Closing Date to the Parent Borrower and contributed to any Borrower in
exchange for Qualified Equity Interests of the Parent Borrower or the applicable Borrower, as applicable, except to the extent utilized in connection with any other transaction permitted by Section 7.03, Section 7.06 or
Section 7.08, and except to the extent such amount increases the Available Amount or is made from
any Cure Amount or any Excluded Contribution Amount.
“Control” has the meaning specified in the definition of “Affiliate.”
“Controlled Investment Affiliate” means, as to any Person, any other Person, 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 Borrower and/or other companies.
“Converted Restricted Subsidiary” has the meaning specified in the definition of “Consolidated EBITDA.”
“Converted Unrestricted Subsidiary” has the meaning specified in the definition of “Consolidated EBITDA.”
“CORRA
” means the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
“Credit Extension” means a Borrowing or an L/C Credit Extension, as the context may require.
“Cure Amount” has the meaning specified in Section 8.05(a).
“Cure Period” has the meaning specified in Section 8.05(a).
“Cure Right” has the meaning specified in Section 8.05(a).
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR published on such date on the Federal
Reserve Bank of New York’s website (or any successor source) plus the SOFR Adjustment.
“Daily Simple SOFR Swingline Loan” means a Swingline Loan that bears interest at a rate based on Daily Simple SOFR.
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“Debt Rating” means, with respect to the Parent Borrower, the S&P
Rating, the Moody’s Rating and/or the Fitch Rating.
“Debtor Relief Laws” means the Bankruptcy Code of the United
States 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 or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined Proceeds” has the meaning specified in Section 2.05(b)(v).
“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) with respect to any overdue principal for any Loan, the applicable interest rate for such Loan plus 2.00% per annum (provided that with respect to Term SOFR Loans, Alternative
Currency Term Rate Loans or Daily Simple SOFR Swingline Loans, as applicable, the determination of the applicable interest rate is subject to Section 2.02(c) to the extent that such Loans, as applicable, may not be converted to, or
continued as, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily Simple SOFR Swingline Loans, as applicable, pursuant thereto) and (b) with respect to any other overdue amount, including overdue interest, the interest rate
applicable to Base Rate Loans plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Defaulting Lender” means any Lender that (a) has failed, within three (3) Business Days of the date required to
be funded or paid, to (i) fund any portion of its Loans required to be funded by it, (ii) fund any portion of its participations in Letters of Credit or Swing Line Loans required to be funded by it or (iii) pay over to the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that
such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Parent Borrower
or the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender in writing that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing indicates that such position
is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied), (c) has failed, within three (3) Business
Days after request by the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations
to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Line Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such
Administrative Agent’s, L/C Issuer’s, Swing Line Lender’s or Lender’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d) has become the subject of a Bankruptcy Event
or (e) has become the subject of a Bail-In Action. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (f) above, and of the effective date of
such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to the last paragraph of Section 2.16) as of the date established therefor by the Administrative Agent
in a written notice of such determination, which shall be delivered by the Administrative Agent to the Parent Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
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“Deposit
Account” has the meaning specified in the UCC.
“Deposit Account Control Agreement” shall mean a “springing control” account control agreement
establishing the Collateral Agent’s “control” (as such term is defined in Section 9-104 of the UCC) with respect to, or otherwise perfecting the Collateral Agent’s Lien on, any Deposit Account (other than any Excluded
Account) located in the United States.
“Designated Non-Cash
Consideration” means the fair market value of non-cash consideration received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.05(l) that is designated as Designated
Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Parent Borrower setting forth the basis of such valuation.
“Determination Date” has the meaning specified in clause (t) of the definition of “Consolidated
EBITDA” herein.
“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 or Consolidated Covenant
EBITDA, as applicable, of such Sold Entity or Business 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 Sale Leaseback and any sale of Equity Interests) 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; provided that (i) “Disposition” and “Dispose” shall not be deemed to include any issuance by the Parent Borrower of any of its Equity Interests to another Person and
(ii) no transaction or series of related transactions shall be considered a “Disposition” for purpose of Section 7.05 unless the fair market value (as determined in good faith by the Parent Borrower) of the property
disposed of in such transaction or series of transactions shall exceed, in any fiscal year, $50,000,000 the greater of (x) $35,000,000 and (y) 10.0% of Consolidated EBITDA of the Parent Borrower for the most recently
ended Test Period.
“Disqualified Equity Interests” 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 exchangeable) or upon the happening of any event: (a) matures or is mandatorily
redeemable for cash or in exchange for Indebtedness pursuant to a sinking fund obligation or otherwise; or (b) is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable or repurchasable for
cash or in exchange for Indebtedness at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to
the date that is 91 after the Latest Maturity Date at the time such Equity Interests are issued; provided, however, that (i) only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Equity Interests and (ii) any Capital Stock that would constitute Disqualified Equity Interests solely because the holders
thereof have the right to require the Parent Borrower to repurchase such Capital Stock upon
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the occurrence of a Change of Control or asset sale (howsoever defined or referred to) shall not constitute Disqualified Equity Interests if any such redemption or repurchase obligation is
subject to compliance by the relevant Person with the covenant described under Section 7.06; provided, however, that if such Capital Stock is issued to any future, current or former employee, director, officer, manager or
consultant (or their respective Affiliates, Immediate Family Members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), of the Parent Borrower, any of its Subsidiaries or any other entity in which the
Parent Borrower or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the board of directors of the Parent Borrower (or the compensation committee thereof) or any other plan for the benefit of
current, former or future employees (or their respective Affiliates, Immediate Family Members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Parent Borrower or its Subsidiaries or by any such
plan to such employees (or their respective Affiliates, Immediate Family Members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), such Capital Stock shall not constitute Disqualified Equity Interests
solely because it may be required to be repurchased by the Parent Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Disqualified Lenders” means (i) such Persons that have been specified in writing to the Lead Arrangers by the Parent
Borrower prior to March 10, 2021, (ii) competitors of the Parent Borrower and its Subsidiaries that have been specified in writing to the Administrative Agent from time to time by the Parent Borrower and (iii) any of their Affiliates
(other than in the case of clause (ii), Affiliates that are bona fide debt funds) that are (x) identified in writing from time to time to the Administrative Agent by the Parent Borrower or (y) clearly identifiable on the basis of
such Affiliates’ name; provided that no such updates to the list shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation interest (or have a pending assignment or participation) within one (1) Business Day of such update in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations
(or pending assignments or participations) on the terms set
forth herein for Lenders that are not Disqualified Lenders (it being understood and agreed that such prohibitions with respect to Disqualified Lenders shall apply to any potential future assignments or participations to any such parties). The
schedule of Disqualified Lenders shall be maintained with the Administrative Agent and may be communicated to a Lender upon request to the Administrative Agent (with concurrent notice to the Parent Borrower) but shall not otherwise be posted or made
available to Lenders.
“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, on any date of determination, (a) with respect to any amount denominated in Dollars, such
amount, (b) with respect to any amount denominated in Euro, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of Dollars with Euro and (c) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency. As appropriate, amounts specified herein as amounts in Dollars shall be or
include any relevant Dollar Equivalent amount.
“Domestic Foreign Holding Company” means any Subsidiary that owns no
material assets (directly or through one or more disregarded entities) other than capital stock (including any Indebtedness that is treated as equity for U.S. Federal income tax purposes) of one or more CFCs.
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“Domestic Loan Party” means any Loan Party that is incorporated or
organized under the laws of any State of the United States or the District of Columbia.
“Domestic Subsidiary” means
any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Early Settlement Date” has the meaning specified in the Exchange Offering Memorandum.
“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.
“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.
“Eligible Assignee” means any Assignee permitted by and consented to in accordance with Section 10.07(b).
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or
operation of a single or unified European currency.
“Environment” means ambient air, indoor or outdoor air, surface
water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Laws” means any and all applicable Laws relating to pollution, protection of the Environment or to the
generation, transport, storage, use, treatment, handling, disposal, Release or threat of Release of any Hazardous Materials or, to the extent relating to exposure to Hazardous Materials, human health or safety.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities) of or relating to any Loan Party or any of its respective Subsidiaries directly or indirectly resulting from or based upon (a) any violation of Environmental Law, (b) the
generation, use, handling, transportation, storage, disposal or treatment of any Hazardous Materials, (c) exposure of any Person to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any
contract,
or agreement or other consensual arrangement to
the extent liability is assumed or imposed with respect to any of the foregoing.
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“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
a sale of Capital Stock (other than through the issuance of Disqualified Equity Interests or through an Excluded Contribution Amount) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any
similar offering in other jurisdictions or other securities of the Parent Borrower or any Ultimate Parent Entity and (b) issuances of Capital Stock to any Subsidiary of the Parent Borrower.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with any Loan
Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to a Pension Plan, whether or not waived, or a failure to make
any required contribution to a Multiemployer Plan; (d) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of
Withdrawal Liability or notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA or in endangered status or critical status, within the meaning of Section 305 of ERISA; (e) the filing of a notice of
intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (h) a determination that any Pension Plan is, or is expected to be, in “at-risk”
status (within the meaning of Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code); or (i) the occurrence of a non-exempt prohibited transaction with respect to any Pension Plan maintained or contributed to by any Loan
Party (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in material liability to any Loan Party.
“Escrow” means an escrow, trust, collateral or similar account or arrangement with a third-party that is not the Parent
Borrower or any of their respective Restricted Subsidiaries or any Affiliate thereof.
“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.
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“Euro”, “EUR” and “€” mean the
lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“Euro
Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Euro as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of Euro with Dollars.
“Event of Default” has the meaning specified in
Section 8.01.
“Excess
Revolving Credit Loans” has the meaning specified in Section 4.02(d).
“Exchange Act” means the Securities Exchange Act of 1934.
“Exchange
Offering Memorandum” has the meaning specified in the 2026 First Lien Indenture and the 2026 Second Lien Indenture.
“Exchange
Offers” means the offers by the Parent Borrower to any and all holders of 2021 Indenture Notes and 2022 Indenture Notes to exchange such 2021 Indenture Notes and 2022 Indenture Notes for 2026 First Lien Notes and 2026 Second Lien Notes,
as applicable.
“Excluded Contribution Amount” means the
aggregate amount of cash or Cash Equivalents (excluding any Cure Amount) received by the Parent Borrower (other than from any of its Subsidiaries) after the Closing Date from contributions to its common equity capital, minus the aggregate
amount of (i) any Investments made pursuant to Section 7.03(n)(ii) (net of any return of capital in respect of such Investment or deemed reduction in the amount of such Investment), (ii) any Restricted Payment made pursuant to
Section 7.06(k)(ii) and (iii) any payments made pursuant to Section 7.08(a)(iii)(C), in each case made during the period commencing on the Closing Date through and including the date of usage of such Excluded
Contribution Amount in reliance thereon (without taking account of the intended usage of the Excluded Contribution Amount as of such date), designated as an Excluded Contribution Amount pursuant to a certificate of a Responsible Officer on or
promptly after the date on which the relevant capital contribution is made or the relevant proceeds are received, as the case may be, and which are excluded from the
calculation of the Available Amount.
“Excluded
Equity” means Equity Interests (i) of any Unrestricted Subsidiary, (ii) of any Foreign Subsidiary or Domestic Foreign Holding Company (in each case other than any Guarantor), in each case of the Parent Borrower or a Domestic
Subsidiary of the Parent Borrower and not otherwise constituting Excluded Equity, in excess of 65% of the issued and outstanding Equity Interests of each such Foreign Subsidiary or Domestic Foreign Holding Company (and of any subsidiary of such
Foreign Subsidiary or Domestic Foreign Holding Company), (iii) of any Subsidiary with respect to which the AdministrativeCollateral Agent and the Parent Borrower have determined in their
reasonable judgment and agreed in writing that the costs
ofor other
consequences (including any adverse tax consequences; provided that with respect to adverse tax consequences the determination shall be made by the Parent Borrower in good faith) of
providing a pledge of such Equity Interests or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties therefrom, (iv) of any
captive insurance
companies,Captive Insurance Subsidiaries,
not-for-profit
Subsidiaries,
or special purpose entities, (v) of any non-Wholly Owned Restricted Subsidiary; (vi) any Securitization Subsidiary; and, (vii) of any Subsidiary outside the United States (other than any Guarantor) the pledge of which is prohibited by applicable Laws or which would reasonably be expected to result in a violation or breach of,
or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers, and (vii) of
Accendra Health Foundation and Accendra Executive Deferred Compensation Trust.
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“Excluded Property” means (i) any fee-owned real property that is not a Material Real Property and any leasehold interests in real property (it being understood that no
action shall be required with respect to creation or perfection of security interests with respect to such leases, including to obtain landlord waivers, estoppels or collateral access letters), (ii) (A) motor vehicles and other assets
subject to certificates of title to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable Laws in the relevant jurisdiction in the case of jurisdictions other than the
U.S.), (B) letter of credit rights to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable Laws in the relevant jurisdiction in the case of jurisdictions other than
the U.S.) and (C) commercial tort claims, (iii) assets for so long as a pledge thereof or a security interest therein is prohibited by applicable Laws, (iv) margin stock, (v) other than as set forth in Section 6.16, any cash, deposit accounts
and securities accounts (including securities entitlements and related assets) (it being understood that this exclusion shall not affect the grant of the Lien on proceeds of Collateral and all proceeds of Collateral shall be Collateral),
(vi) any lease, license or other agreements, or any property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangements, in each case to the extent permitted under the Loan Documents, to the extent that
a pledge thereof or a security interest therein would violate or invalidate such lease, license or agreement, purchase money, Capitalized Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than
the Borrowers or a Guarantor) after giving effect to the applicable anti-assignment clauses of the Uniform Commercial Code and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective
under applicable Laws notwithstanding such prohibition, (vii) assets for which a pledge thereof or security interest therein would result in a material adverse tax consequence as reasonably determined in good faith by the Parent Borrower and subject to the reasonable consent of the Administrative Agent); provided that nothing in this clause
(vii) shall limit the pledge of assets by any Foreign Subsidiary that is a Guarantor without the Administrative Agent’s consent, (viii) assets for which the AdministrativeCollateral
Agent and the Parent Borrower have determined in their reasonable judgment and agree in writing
that the cost of creating or perfecting such pledges or security interests therein would be excessive in view of the benefits to be obtained by the Lenders therefrom, (ix) any
intent-to-use trademark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in
which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable Federal law, (x) Excluded Equity and (xi) any asset of any
Subsidiary of the Parent Borrower that is a CFC or Domestic Foreign Holding Company.
“Excluded Subsidiary”
means (a) each Subsidiary listed on Schedule 1.01C hereto, (b) any Subsidiary that is prohibited by applicable Law or by any contractual obligation existing on the Closing Date (or, if later, the date such Subsidiary first becomes a
Subsidiary) from guaranteeing the Obligations (and in the case of such contractual obligation, not entered into in contemplation of the acquisition of such Subsidiary) or which would require governmental (including regulatory) consent, approval,
license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received, (c) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or other similar Investment permitted
hereunder that, at the time of such Permitted Acquisition or other similar Investment, has assumedoutstanding
46
secured Indebtedness not incurred in contemplation of such Permitted Acquisition or other similar Investment and each Restricted Subsidiary that is a Subsidiary thereof that guarantees such
Indebtedness, in each case, to the extent such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor (provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause
(c) if such secured Indebtedness is repaid or becomes unsecured, if such Restricted Subsidiary ceases to be an obligor with respect to such secured Indebtedness or such prohibition no longer exists, as applicable), (d) any Immaterial
Subsidiary or Unrestricted Subsidiary, (e) captive insurance companies, (f) not-for-profitCaptive Insurance Subsidiaries, (f) [reserved], (g) special purpose
entities[reserved], (h) any non-Wholly Owned
Subsidiary, (i) any Domestic Foreign Holding Company, (j) any Foreign Subsidiary that is a CFC (other
than any Foreign Guarantor), (k) any Domestic Subsidiary of a Foreign Subsidiary that is a
CFC, (other
than any Foreign Guarantor), (l) any Securitization Subsidiary and (m) any other Subsidiary with respect to which the Administrative Agent and the Borrowers
haveParent Borrower has determined in theirits reasonable judgment, and agree in writing,judgement that the cost or other consequences (including any adverse tax
consequences; provided that with respect to adverse tax consequences the determination shall be made by the Borrowers in consultation with (but without
the consent of) the Administrative AgentParent Borrower in good faith) of providing a Guarantee shall
beis excessive in view of the benefits to be
obtained by the Lenders therefrom; in each case of this definition, unless such Subsidiary is designated by the Parent Borrower as a Guarantor pursuant to the definition of “Guarantors”; provided that such Subsidiary shall not guarantee any Indebtedness for borrowed money of a Loan Party in an
aggregate principal amount in excess of $25,000,000.
“Excluded Swap
Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation
(or any Guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of
such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise
have become effective with respect to such related Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time. If a Swap Obligation arises under a Master Agreement governing
more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guarantee or security interest is or becomes excluded in accordance with the first sentence of
this definition.
“Excluded
Account” has the meaning specified in Section 6.16(a).
“Excluded Taxes” means, any of the following Taxes imposed on or with respect to any Agent, any Lender, any L/C Issuer, any
Swing Line Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document or required to be withheld or deducted from any such payment to any such recipient, (a) Taxes
imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, by any jurisdiction (i) imposed as a result of a present or former connection of such Agent, Lender or other recipient, as the
case may be, with such jurisdiction (including as a result of being resident or being deemed to be resident, being organized, maintaining an Applicable Lending Office or carrying on business or being deemed to carry on business in such jurisdiction)
other than any connection arising solely from any Loan Documents or any transactions contemplated thereby, or (ii) that are Other Connection Taxes (b) any U.S. federal withholding
47
Taxes imposed on amounts payable to any Lender pursuant to a law in effect at the time such Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrowers
under Section 3.06(a)) or designates a new Applicable Lending Office, except to the extent such Lender’s assignor was entitled immediately prior to the assignment, or such Lender was entitled immediately before it designated a new
Applicable Lending Office, to receive additional amounts from any Loan Party with respect to such Taxes pursuant to Section 3.01(a), (c) Taxes resulting from a failure of a Lender to comply with Section 3.01(f) or a
failure of the Administrative Agent to comply with Section 3.01(g) and (d) any withholding Taxes imposed pursuant to FATCA.
“Existing
Citizens Letters of Credit” each of the letters of credit described in the final row of Schedule 2.03(a)(i).
“Existing Apria Credit AgreementQualified Securitization” means that certain
CreditReceivables
Purchase Agreement, dated as of June 21October 18, 20192024, by and between Apria Healthcare Group LLC, Apria Holdings LLC, the other guarantorsamong Owens & Minor Medical, LLC, as the initial servicer, O&M Funding LLC, as seller, the purchasers from time to time party thereto, CitizensPNC Bank, N.A.National
Association, as administrative agent, the lenders party thereto, and the other parties party thereto, as
the same may be amended, restated,and PNC Capital Markets LLC, as structuring agent, and as amended and
restated by that certain Amended and Restated Receivables Purchase Agreement, dated as of December 31, 2025, by and among Byram Healthcare Centers, Inc., as the initial servicer, O&M Funding LLC, as seller, the purchasers from time to time
party thereto, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC, as structuring agent, and as further amended, supplemented or otherwise, modified, extended, renewed, restated or refinanced from time to time.
“Existing Apria Letters of Credit” means
each letter of credit previously issued or deemed issued for the account of any of the Restricted Subsidiaries that is outstanding on the Amendment No. 2 Effective Date and set forth on Schedule 2.03(a)(ii).
“Existing Credit Agreement” means that
certain Credit Agreement, dated as of July 27, 2017 (as amended by that certain (i) First Amendment to Credit Agreement dated as of March 29, 2018; (ii) Second Amendment to Credit Agreement, dated as of April 30, 2018;
(iii) Third Amendment to Credit Agreement, dated as of May 9, 2018; (iv) Fourth Amendment to Credit Agreement dated as of February 12, 2019; and (v) Fifth Amendment to Credit Agreement, dated as of February 13, 2020),
by and among Distribution, Medical, Barista I,, Barista II, O&M Halyard, the Parent Borrower, the Guarantors (as defined therein) party thereto, the Banks (as defined therein) party thereto, Bank of America, N.A., as administrative agent (as
successor in interest to Wells Fargo Bank, N.A., in such capacity, the “Agent”).
“Existing Letters of Credit” has the meaning specified in Section 2.03(a)(i).
“Expected Cure Amount” has the meaning specified in Section 8.05(b).
“Extended Revolving Credit Commitment” has the meaning specified in Section 2.15(a).
“Extending Revolving Credit Lender” has the meaning specified in Section 2.15(a).
“Extension” has the meaning specified in Section 2.15(a).
48
“Extension Offer” has the meaning specified in
Section 2.15(a).
“FATCA” means current Sections 1471 through 1474 of the Code (and any amended or
successor version that is substantively comparable) or any current or future regulations with respect thereto or other official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any
amended or successor version described above) and any intergovernmental agreements entered into to implement or further the collection of Taxes imposed pursuant to the foregoing (together with any Law, fiscal or regulatory legislation, rules or
practices implementing such agreements, treaties or conventions).
“FCPA” means the United States Foreign Corrupt
Practices Act of 1977, as amended.
“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 by the Federal Reserve Bank of New York on the Business Day next succeeding such day; 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 on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative
Agent. If the Federal Funds Rate is less than zero, it shall be deemed to be zero hereunder.
“Financial
Covenants” means the covenants set forth in Section 7.11.
“Financial Covenant Event of Default”
has the meaning specified in Section 8.01(b).
“First Lien Leverage Ratio” means, with respect to any Test
Period, the ratio of (a) the Consolidated Total Debt comprising the Obligations and any other Consolidated Total Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Obligations, as of the last
day of such Test Period to (b) Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“First Lien Leverage Covenant Ratio” means, with respect to any Test Period, the ratio of (a) the
Consolidated Total Debt comprising the Obligations and any other Consolidated Total Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Obligations, as of the last day of such Test Period to
(b) Consolidated Covenant EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“Fixed Charges” means, with respect to any Person for any period, the sum of:
(1) Consolidated Interest Expense of such Person for such Test Period;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any
Restricted Subsidiary of such Person during such period; and
(3) all cash dividends or other distributions paid (excluding items
eliminated in consolidation) on any series of Disqualified Equity Interests of such Person during this period.
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“Flood Insurance Laws” means, collectively, (i) National Flood
Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform
Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Borrower” means each Foreign Subsidiary that is, or may from time to time become party to this Agreement pursuant
to Section 2.19.
“Foreign Borrower Joinder Agreement” means a joinder agreement, in a form reasonably
satisfactory to the Administrative Agent, executed and delivered by an Applicant Foreign Borrower, the then-existing Borrowers, the Parent Borrower, the Guarantors and the Administrative Agent.
“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to or
by, or entered into with, any Loan Party or any Restricted Subsidiary with respect to employees outside the United States.
“Foreign Subsidiary” means any direct or indirect Subsidiary of the Parent Borrower which is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Fee” has the meaning specified in Section 2.03(h).
“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 of its activities.
“GAAP” means generally
accepted accounting principles in the United States, as in effect from time to time; provided that if the Parent Borrower notifies the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the
effect of any change 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 Parent 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.
“Governmental Authority” means any nation or government, any state, provincial, country, territorial or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Granting Lender” has the meaning specified in Section 10.07(h).
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“Guarantee Obligations” 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 Obligations” shall not include (x) endorsements for collection or deposit, in
either case in the ordinary course of business, (y) any customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement
(other than such obligations with respect to Indebtedness) or (z) Standard Securitization Obligations and Limited Originator Recourse relating to Qualified Securitization Transactions. The amount of any Guarantee Obligation 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 Obligation 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.
“Guarantees” has the meaning specified in the
definition of “Collateral and Guarantee Requirement.”
“Guarantors” has the meaning specified in the
definition of “Collateral and Guarantee Requirement.” For avoidance of doubt, the Parent Borrower in its sole discretion may cause any Restricted Subsidiary that is not a Guarantor to Guarantee the Obligations by causing such Restricted
Subsidiary to execute and deliver to the Administrative Agent a Guaranty Supplement (as defined in the Guaranty), and any such Restricted Subsidiary shall thereafter be a Guarantor, Loan Party and Subsidiary Guarantor hereunder for all purposes;
provided that if such Restricted Subsidiary is not organized in the United States, (i) the jurisdiction of organization of such Restricted Subsidiary shall be reasonably satisfactory to the Collateral Agent if acting as Collateral Agent
or entering into Loan Documents with Subsidiaries in such jurisdiction is prohibited by applicable Law or would expose the Collateral Agent, in its capacity as such, to material additional liabilities and (ii) such Restricted Subsidiary shall
have complied with the Collateral and Guarantee Requirement prior to the becoming a Guarantor.
“Guaranty” means,
collectively, (a) the Guaranty substantially in the form of
Exhibit Fthat certain Guaranty, dated as of March 10, 2021, between, among others, the Loan
Parties party thereto as of the date thereof and the Administrative Agent (as amended by Amendment No. 2) and (b) each other guaranty and guaranty supplement delivered pursuant to
Section 6.10.
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“Hazardous Materials” means all hazardous, toxic, explosive or
radioactive substances or wastes, and all other chemicals, pollutants, contaminants, substances or wastes of any nature regulated pursuant to any Law relating to the
EnvironmentEnvironmental Laws because of their
hazardous, toxic, dangerous or deleterious characteristics or properties, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and toxic mold.
“Hedge Bank” means any Person that is (i) a Lender, an Agent, a Lead Arranger or an Affiliate of the foregoing at the
time it enters into a Secured Hedge Agreement, or (ii) party to a Swap Contract with a Loan Party or any Restricted Subsidiary that is in effect as of the Closing Date, in its capacity as a party thereto.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or similar agreement providing for the
transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“Immaterial Subsidiary” means at any date of determination, each Restricted Subsidiary of the Parent Borrower that has been
designated by the Parent Borrower in writing to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a Material Subsidiary as provided below); provided that (a) for
purposes of this Agreement, (i) the total assets or Consolidated EBITDA of each Immaterial Subsidiary shall not exceed (x) 2.5% of Consolidated Total Assets at such date or (y) 2.5% of the total Consolidated EBITDA of the Parent
Borrower and its Restricted Subsidiaries for such Test Period, in each case determined on a consolidated basis in accordance with GAAP and (ii) at no time shall the total assets of all Immaterial Subsidiaries at the last day of the most recent
Test Period or the Consolidated EBITDA of all Immaterial Subsidiaries for such Test Period exceed (x) 7.5% of Consolidated Total Assets at such date or (y) 7.5% of the total Consolidated EBITDA of the Parent Borrower and its Restricted
Subsidiaries for such period, in each case determined on a consolidated basis in accordance with GAAP, (b) the Parent Borrower shall not designate any new Immaterial Subsidiary if such designation would not comply with the provisions set forth
in clause (a) above, and (c) if the Consolidated Total Assets or the Consolidated EBITDA of all Restricted Subsidiaries so designated by the Parent Borrower as “Immaterial Subsidiaries” (and not redesignated as
“Material Subsidiaries”) shall at any time exceed the limits set forth in clause (a) above, then all such Restricted Subsidiaries shall be deemed to be Material Subsidiaries unless and until the Parent Borrower shall
redesignate one or more Immaterial Subsidiaries as Material Subsidiaries, in each case in a written notice to the Administrative Agent, and, as a result thereof, the total assets and gross revenues of all Restricted Subsidiaries still designated as
“Immaterial Subsidiaries” do not exceed such limits; and provided, further, that the Parent Borrower may designate and re-designate a Restricted Subsidiary as an Immaterial Subsidiary at any time, subject to the
terms set forth in this definition.
“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 estate 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.
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“Incremental Equivalent Debt” has the meaning specified in
Section 7.01(p).
“Incremental Facility Amendment” has the meaning specified in
Section 2.14(d).
“Incremental Facility Closing Date” has the meaning specified in Section 2.14(e).
“Incremental Incurrence Test” has the meaning specified in Section 2.14(a).
“Incremental Revolving Commitments” has the meaning specified in Section 2.14(a).
“Incremental Revolving Lender” has the meaning specified in Section 2.14(e).
“Incurrence Based Amounts” has the meaning specified in Section 1.09(b).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:
(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 letters of credit (including standby and commercial), banker’s 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 or services (other than
(i) trade accounts payable in the ordinary course of business and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid within thirty
(30) days after becoming due and payable);
(e)
indebtedness (excluding prepaid interest thereon) 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 Indebtedness;
(g)
all obligations of such Person in respect of Disqualified Equity Interests; and
(h)
all Guarantee Obligations of such Person in respect of any of the foregoing.
53
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, company, 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 limited, (B) in the case of the Parent Borrower 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 consistent with past practice and (C) except for purposes of calculating the Consolidated Interest Coverage Ratio to the extent the interest expense in respect thereof is not covered by
proceeds held in Escrow or in connection with any test date of any Limited Condition Transaction or any test related to a subsequent transaction, exclude Indebtedness incurred in advance of, and the proceeds of which are to be applied in connection
with, the consummation of a transaction solely to the extent the proceeds thereof are and continue to be held in an Escrow and are not otherwise made available to such Person. 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) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” has the meaning specified in Section 10.05.
“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or in respect of any payment made by or
on account of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 10.05.
“Indentures” means collectively, the 2014 Indenture, 2021 Indenture and, 2022 Indenture, 2026 First Lien Indenture and 2026 Second Lien
Indenture.
“Information” has the meaning specified in
Section 10.08.
“Initial Revolving Borrowing” means one or more borrowings of Revolving Credit Loans or
issuances or deemed issuances of Letters of Credit on the Closing Date.
“Inside Maturity Debt” means, with respect to any Indebtedness permitted pursuant to Section 7.01(n), Section 7.01(p), and any Permitted Refinancing thereof, an
aggregate amount up to the greater of (x) $330 million and (y) 50% of Consolidated EBITDA as of the most recently ended Test Period at any time outstanding; provided that no such Inside Maturity Debt shall have a final maturity date
earlier than the Initial Term A-1 Maturity Date (as defined in the Term Loan Credit Agreement as in effect on the date hereof).
“Interest Payment Date” means (a) as to any Loan denominated in Dollars other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; 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; (b) as to any Base Rate Loan (including Swing Line Loan bearing interest at the Base Rate) or Daily Simple SOFR Swingline Loan, the last Business Day of each March, June, September and December and the
Maturity Date, (c) as to any Alternative Currency Daily Rate Loan, the last Business Day of each month and the applicable maturity date set forth in the Credit Agreement and (d) as to any Alternative Currency Term Rate Loan, the last day
of each Interest Period applicable to such Loan; provided, however, that if any Interest Period for an Alternative Currency Term Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of
such Interest Period shall be Interest Payment Dates.
54
“Interest Period” means, (i) as to each Term SOFR Loan, the period
commencing on the date such Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one, three or six months thereafter, or to the extent agreed to by each Lender of such Term SOFR Loan and the Administrative Agent,
such other period that is twelve months or less as selected by the Borrowers in their Committed Loan Notice (in the case of each requested Interest Period, subject to availability) and (ii) as to each Alternative Currency Term Rate Loan, the
period commencing on the date such Alternative Currency Term Rate Loan is disbursed or converted to or continued as an Alternative Currency Term Rate Loan and ending on the date one, three or six months thereafter, as selected by the Borrowers in
each Committed Loan Notice, or twelve months or any other period thereafter as selected by the Borrowers and consented to by each Lender of such Alternative Currency Term Rate Loan and the Administrative Agent (in each case, subject to availability
for the interest rate applicable to the relevant currency); provided that:
(a)
any Interest Period that would otherwise end on a day that is not a Business Day shall 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;
(b)
any Interest Period 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
(c)
no Interest Period shall extend beyond the Maturity Date.
“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 to, Guarantee Obligation with respect to any obligation 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 Borrower and its Restricted Subsidiaries,
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 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 shall be the amount actually invested, without adjustment for subsequent increases or decreases in the
valueoutstanding at any one time shall be the original cost of such
Investment.,
reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash or Cash Equivalents by the Parent Borrower or a Restricted Subsidiary in respect of such Investment to the extent such amounts do
not increase any other baskets under this Agreement.
“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 an equivalent rating by Fitch, Inc.
55
“IP Rights” has the meaning specified in Section 5.14.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc.
or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor
thereto.
“ISP” means with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Junior
Lien Intercreditor Agreement” means that certain Junior Lien Intercreditor Agreement, dated as of the Amendment No. 4 Effective Date, among the Collateral Agent, JPMorgan Chase Bank, N.A., as collateral agent under the Term Loan
Credit Agreement, Regions Bank as collateral agent under the 2026 First Lien Indenture and Regions Bank as collateral agent under the 2026 Second Lien Indenture, and the representatives for purposes thereof for holders of one or more other classes
of Indebtedness, and acknowledged and agreed by the Loan Parties, as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement, and which shall also include any
replacement intercreditor agreement entered into in accordance with the terms hereof (so long as such replacement intercreditor agreement would qualify as an Acceptable Intercreditor Agreement for Indebtedness that is permitted hereunder to be
secured by Liens on the Collateral that are junior to the Liens securing the Obligations).
“JV Entity” means any joint venture of the Parent Borrower or any Restricted Subsidiary that is not a Subsidiary.
“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 Extended Revolving Credit Commitment, Additional Revolving Credit Commitment, Incremental Revolving Commitment, in each case as extended in accordance with this Agreement from time to
time.
“Laws” means, collectively, all international, foreign, federal, state, provincial and local laws (including
common laws), statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents 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 Applicable Percentage.
“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.
“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.
56
“L/C Issuer” means (i) Bank of America, or any of its Subsidiaries
or Affiliates, (ii) any other Revolving Credit Lender (or any of its Subsidiaries or Affiliates) that becomes an L/C Issuer in accordance with Section 2.03(j) or Section 10.07(j) and (iii) solely with respect to the
Existing
ApriaCitizens
Letters of Credit, Citizens Bank, N.A.; provided, that in the case of the L/C Issuers in clause (i) above, (x) their commitment to issue Letters of Credit shall not exceed at any
time the amount set forth opposite such L/C Issuer’s name on Schedule 2.01I to Amendment No. 4 under the caption “L/C CommitmentsCommitment
” and (y) such L/C Issuers shall be the only L/C Issuers permitted to issue Letters of Credit hereunder in an Alternative Currency.
“L/C Obligation” means, as at any date of determination, the aggregate maximum amount then available to be drawn under all
outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts in respect of Letters of Credit, including all L/C Borrowings.
“L/C Stated Amount” of each Letter of Credit means the maximum amount available to be drawn thereunder (regardless of
whether any conditions or other requirements for drawing could then be met).
“LCT Election” has the meaning specified
in Section 1.09(a).
“LCT
Representations” has the meaning specified in Section 5.19.
“LCT Test Date” has the meaning specified in Section 1.09(a).
“Lead Arrangers” means BofA Securities, Inc., Citibank, N.A., JPMorgan Chase Bank, N.A., PNC Bank, National Association,
Regions Bank, Regions Capital Markets, Capital One, N.A. and Citizens Bank, N.A., in their capacities as Joint Lead Arrangers and Joint Bookrunners under this Agreement.
“Lender” has the meaning specified 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 Recipient Party” means, collectively, the Lenders, the Swing Line Lender and any L/C Issuers.
“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 Dollars or in an Alternative Currency, provided that no L/C Issuer has an obligation to issue trade or commercial letters of credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in
the form from time to time in use by the relevant L/C Issuer.
“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 Amendment No. 4
Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Letter
of Credit Fee” has the meaning specified in Section 2.03(g).
57
“Letter of Credit Sublimit” means an amount equal to the lesser of
(a)
$75,000,000100,000,000
and (b) the aggregate amount of the Revolving Credit Commitments.
“Liability Management Transaction” means any refinancing, retirement, exchange, extension, repurchase, or
defeasance of any Loans or any Indebtedness for borrowed money that is contractually or structurally junior thereto with any other Indebtedness that is contractually, structurally or temporally senior (including as to Lien priority or additional
collateral) to such Loans (including, for the avoidance of doubt, through any incurrence of Indebtedness by a Person that is not a Borrower or a Guarantor, whether or not such Person owns any assets or property), and any asset transfer (and
including any related assumption of liabilities) consummated in connection therewith; provided that, for the avoidance of doubt, in no event shall any of the following constitute a Liability Management Transaction: (a) any refinancing,
retirement, exchange, extension, repurchase, or defeasance of any existing Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries that is already contractually, structurally or temporally senior (including as to Lien priority or
additional collateral) to such Loans, with Indebtedness that is so senior to no greater extent, (b) any Indebtedness that is offered ratably on the same terms and conditions as offered to all other providers of such Indebtedness (other than
bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such transaction), to all adversely affected Lenders, and (c) any Indebtedness (x) incurred in connection with
the Amendment No. 4 Transactions or (y) incurred to finance the repurchase of or in exchange for Senior Notes in compliance with Section 7.01 and Section 7.06.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge, assignment (by way of security or otherwise), deemed trust, 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 Capitalized Lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Transaction” means (x) any acquisition or other investment, including by way of merger, by the
Parent Borrower or one or more of its Restricted Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned upon the availability of, or on obtaining, third party financing and (y) any redemption, repurchase,
defeasance, satisfaction and discharge or repayment of indebtedness requiring irrevocable notice in advance of such redemption, repurchase, satisfaction and discharge or repayment.
“Limited Originator Recourse” means a letter of credit, cash collateral account or other credit enhancement issued or
provided for a similar purpose in connection with the incurrence of Indebtedness by a Securitization Subsidiary under a Qualified Securitization Transaction.
“Liquidity
” means, as of any date of determination, (a) all cash and Cash Equivalents of the Parent Borrower and its Subsidiaries which do not appear as “restricted” on the consolidated balance sheet of the Parent Borrower (unless
as a result of Liens permitted by clauses (a), (n), (o), (p), (r), (s), (v), (w), (ee), (ff) or (gg) of the definition of “Permitted Liens”; provided, that the beneficiaries thereof (or an agent on their behalf) shall have entered into
an Acceptable Intercreditor Agreement to the extent required by the terms of this Agreement), plus (b) unused Revolving Credit Commitments, plus (c) amounts undrawn or otherwise available to be borrowed, funded or utilized
under a Qualified Securitization Transaction in accordance with the terms of such Qualified Securitization Transaction as of such date, subject in the case of this clause (c), to borrowing base availability thereunder.
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“Liquidity
Certificate” means a certificate substantially in the form of Exhibit M.
“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of Revolving Credit Loan
or a Swing Line Loan (including any Additional Revolving Credit Commitment, loans made pursuant to Extended Revolving Credit Commitments).
“Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) each Guaranty, (iv) the
Collateral Documents, (v) each Letter of Credit Application
and, (vi) the Pari Passu First Lien Intercreditor Agreement, (vii) the Junior Lien Intercreditor Agreement, (viii) any other
Acceptable Intercreditor Agreement and (ix) Amendment No. 2 Effective Date Intercreditor
Agreement4, in each case, together with any amendments thereto and as such documents may be
amended in accordance with this Agreement.
“Loan Parties” means, collectively, (i) the Borrowers and
(ii) each Guarantor.
“Market Capitalization” means an amount equal to (i) the total number of issued and
outstanding shares of common stock or common equity interests of the Parent Borrower or its direct or indirect parent 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 stock or common equity interests on the principal securities exchange on which such common stock or common equity interests are traded for the thirty (30) consecutive trading days immediately preceding the date of declaration of
such Restricted Payment.
“Master Agreement” has the meaning specified 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 Parent Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their
respective payment obligations under any Loan Document to which any of the Loan Parties is a party or (c) a material adverse effect on the rights and remedies of the Lenders or the Agents under any Loan Document.
“Material Real Property” means
(a) each fee-owned real property set forth on Schedule 1.01E and (b) other than Excluded Property, any fee-owned real property acquired by any Loan Party following the Closing Date (or owned by any Person that becomes a Loan Party after
the Closing Date) located in the United States with a fair market value in excess of $15,000,000.
“Material Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Parent Borrower that is not an
Immaterial Subsidiary (but including, in any case, any Restricted Subsidiary that has been designated as a Material Subsidiary as provided in, or that has been designated as an Immaterial Subsidiary in a manner that does not comply with, the
definition of “Immaterial Subsidiary”); provided that no Securitization Subsidiary shall constitute a Material Subsidiary.
“Maturity Date” means
(a) with respect to the Amendment No. 4 Revolving Credit Facility, the fifth anniversary of the Amendment No. 2 Effective Date
(or,January 31, 2030; provided that solely to the extent (i) the Initial Term B-1 Term Loans (as
defined in the Term Loan Credit Agreement as in effect on the Amendment No. 4 Effective Date) remain outstanding in an aggregate principal amount in excess of the Threshold Amount as of the First Springing Maturity Date (as defined below) and
shall not have been modified, refinanced, refunded, renewed, extended
59
or otherwise replaced with Indebtedness maturing on May 2,
2030 (or later), the Maturity Date of the Amendment No. 4 Revolving Credit Facility shall be December 28, 2028 (the “First Springing Maturity Date”), (ii) the 2021 Indenture Notes remain outstanding in an aggregate
principal amount in excess of the Threshold Amount as of the Second Springing Maturity Date (as defined below) and shall not have been modified, refinanced, refunded, renewed, extended or otherwise replaced with Indebtedness maturing on May 2,
2030 (or later), the Maturity Date of the Amendment No. 4 Revolving Credit Facility shall be December 30, 2028 (the “Second Springing Maturity Date”), (iii) the 2022 Indenture Notes remain outstanding in an
aggregate principal amount in excess of the Threshold Amount as of the Third Springing Maturity Date (as defined below) and shall not have been modified, refinanced, refunded, renewed, extended or otherwise replaced with Indebtedness maturing on
May 2, 2030 (or later), the Maturity Date of the Amendment No. 4 Revolving Credit Facility shall be December 31, 2029 (the “Third Springing Maturity Date”), and (iv) any Indebtedness for borrowed money of the
Loan Parties (excluding any Qualified Securitization Transaction) with a final maturity date on or prior to January 31, 2030 remains outstanding in an aggregate principal amount in excess of the Threshold Amount (in respect of any single
agreement, indenture or instrument pursuant to which such Indebtedness for borrowed money was issued) as of such date, the Maturity Date of the Amendment No. 4 Revolving Credit Facility shall be the date that is 91 days prior to such final
maturity date for such Indebtedness for borrowed money and (b) with respect to any Additional Revolving Credit Commitment or Extended Revolving Credit Commitments, the maturity date
applicable to such Additional Revolving Credit Commitment or Extended Revolving Credit Commitments in accordance with the terms hereof).
“Merger” has the meaning set forth in the Second
Amendment No. 2.
“Merger Agreement” has the meaning set forth in the Second
Amendment No. 2.
“Minimum Extension Condition” has the meaning specified in
Section 2.15(b).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage” means a deed of trust, trust deed, deed of hypothecation, security deed or mortgage, as applicable, in each
case, creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured
Parties, in form and substance reasonably satisfactory to the Collateral Agent.
“Mortgage Policies” has the meaning
specified in paragraph (f) of the
definition of Collateral and Guarantee Requirement.
“Mortgaged Property” means each Material Real Property, if any, which shall be subject to a Mortgage delivered pursuant to Section 6.10 and/or Section 6.12, as applicable.
“Multiemployer Plan” means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the immediately preceding six (6) years, has made or been obligated to make contributions.
“Necessary Cure Amount” has the meaning specified in Section 8.05(b).
60
“Net Cash Proceeds” means:
(a) with respect to the Disposition of any asset by the Parent Borrower or any Restricted Subsidiary or any Casualty Event, an amount equal to
the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a
note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Parent
Borrower or any Restricted Subsidiary) over (ii) the sum of (A) the principal amount, premium (including
tender premiums) or penalty, if any, interest and other, defeasance costs, underwriting discounts, original issue discount, upfront fees or similar fees and other amounts on any Indebtedness that is secured by the asset (or Indebtedness owned by a Non-Loan Party that owns 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 and Indebtedness that is secured by Liens ranking junior to or pari passu with the Liens securing Obligations under the
Loan Documents), (B) the out-of-pocket fees and expenses (including attorneys’ 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 by the Parent Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) taxes paid or reasonably
estimated to be actually payable in connection therewith (including, for the avoidance of doubt, any income, withholding and other taxes payable as a result of the distribution of such proceeds to the Parent Borrower), and (D) any reserve for
adjustment in respect of (x) the sale price of such asset or assets or purchase price adjustment established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Parent Borrower or any
Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification obligations associated with
such transaction, it being understood that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by the Parent Borrower or any Restricted Subsidiary in any
such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or if such liabilities have not been satisfied in
cash and such reserve is not reversed within 365 days after such Disposition or Casualty Event, the amount of such reserve; and
(b)
with respect to the incurrence or issuance of any Indebtedness by the Parent Borrower or any Restricted Subsidiary, the excess, if any, of (x) the sum of the cash received in connection with such incurrence or issuance over (y) the
investment banking fees, underwriting discounts, commissions, Taxes, costs and other out-of-pocket expenses and other customary expenses incurred by the Parent Borrower or such Restricted Subsidiary in connection with such incurrence or issuance; and
(c)
(ii) with respect to any Permitted Equity Issuance by
any direct or indirect parent of the Parent Borrower, the amount of cash from such Permitted Equity Issuance contributed to the capital of the Parent Borrower.
“Non-Consenting Lender” has the meaning specified in Section 3.06(d).
“Non-Extending Lender” means any Lender that elects not to participate in an Extension pursuant to
Section 2.15.
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“Non-Loan Party” means any Restricted Subsidiary of the Parent Borrower
that is not a Loan Party.
“Nonrenewal Notice Date” has the meaning specified in Section 2.03(b)(iii).
“Note” means a Revolving Credit Note.
“Obligations” means (w) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party
or other Subsidiary 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 any other 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, (x) obligations of any Loan Party or any other Restricted Subsidiary arising under any Secured Hedge Agreement (other than any Excluded Swap Obligations), (y) Cash
Management Obligations and (z) all Bilateral Letter of Credit Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of any of their 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 commissions, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and
other amounts, in each case, payable by any Loan Party or any other Subsidiary under any Loan Document and (b) the obligation of any Loan Party or any other Subsidiary 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 or such Subsidiary.
“Organization
Documents” means (a) with respect to any corporation or company, the certificate or articles of incorporation or amalgamation, the memorandum and articles of association, any other constitutional documents, any certificates of change
of name and/or the bylaws; (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, declaration, 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.
“Other
Applicable Indebtedness” has the meaning specified in Section 2.05(b)(ii)(A).
“Other Connection Taxes” means, with respect to any recipient, Taxes imposed as a result of a present or former connection
between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
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“Other Taxes” means all present or future stamp, court or documentary
Taxes and any intangible, mortgage recording or similar Taxes which 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, excluding, in each case, any such Tax resulting from an Assignment and Assumption or transfer or assignment to or designation of a new Applicable Lending Office or other office for
receiving payments under any Loan Document (an “Assignment Tax”) but only if (a) such Assignment Tax is an Other Connection Tax and (b) such Assignment Tax does not arise as a result of an assignment (or designation of a
new Applicable Lending Office) pursuant to a request by a Borrower under Section 3.06.
“Outstanding
Amount” means (a) with respect to the Revolving Credit Loans and Swing Line Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of Revolving Credit Loans (including any refinancing of outstanding Unreimbursed Amounts 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 Dollar Equivalent amount of the aggregate outstanding amount thereof on such date after giving effect to any related 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 Unreimbursed Amounts under related Letters of Credit (including any refinancing of outstanding Unreimbursed Amounts under related Letters of Credit or related L/C
Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.
“Parent Borrower” has the meaning specified in the introductory paragraph to this Agreement.
“Pari
Passu First Lien Intercreditor Agreement” means that certain Amended and Restated First Lien Pari Passu Intercreditor Agreement, dated as of the Amendment No. 4 Effective Date, among the Collateral Agent, JPMorgan Chase Bank, N.A.,
as collateral agent under the Term Loan Credit Agreement, Regions Bank, as collateral agent under the 2026 First Lien Indenture and the representatives for purposes thereof for holders of one or more other classes of Indebtedness, and acknowledged
and agreed by the Loan Parties, as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement, and which shall also include any replacement intercreditor agreement
entered into in accordance with the terms hereof (so long as such replacement intercreditor agreement would qualify as an Acceptable Intercreditor Agreement for Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that
are pari passu with the Liens securing the Obligations).
“Participant” has the meaning specified in Section 10.07(e).
“Participant Register” has the meaning specified in Section 10.07(e).
“PBGC” means the Pension Benefit Guaranty Corporation.
“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 (6) years.
“Permitted Acquisition” has the meaning specified in Section 7.03(j).
63
“Permitted Equity Issuance” means any sale or issuance of any Qualified
Equity Interests other than a sale or issuance that would constitute an Excluded Contribution Amount.
“Permitted
Liens” means:
(a)
Liens (x) incurred to secure
any Cash Management Obligations or other “bank products” (including those described in Section 7.01(q)) and (y) created by or arising under (x) the Loan Documents in
favor of the Administrative Agent on behalf of the Secured Parties and the other holders of the Obligations and Liens created by or arising under the Loan Documents in favor of the Collateral Agent on behalf of the Secured Parties and (y) the Term Loan Credit Agreement;
(b)
Liens (other than Liens created or imposed under ERISA) for taxes, assessments or governmental charges or
levies not overdue for a period of more than thirty (30) days or Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the
property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(c)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and
other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business; provided that such Liens secure only amounts not yet due and payable or, if due and payable, not overdue for a
period of more than thirty (30) days and unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(d)
Liens arising in the ordinary course of business under supplier agreements or securing related obligations to
suppliers;
(e)
Liens that are non-exclusive licenses of IP Rights granted in the ordinary course of business;
(f)
Liens (other than Liens created or imposed under ERISA) incurred or deposits made by any member of the
Consolidated Group in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(g)
Liens securing judgments for the payment of money not constituting an Event of Default under
Section 8.01(h);
(h)
easements, rights-of-way, restrictions (including zoning restrictions), minor defects or irregularities in
title and other similar charges or encumbrances that do not secure any monetary obligations and do not, in any material respect, impair the use of the encumbered real property in the ordinary course of business;
64
(i)
Liens on property of any Person securing Indebtedness (including Capitalized
Leases, Indebtedness in respect of Sale Leasebacks and synthetic leases) of a Loan Party to the extent permitted under
SectionSections 7.01(c) or 7.01(cc);
(j)
leases or subleases granted to others not interfering in any material respect with the business of any member
of the Consolidated Group;
(k)
any interest or title of a lessor under, and Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(l)
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;
(m)
Liens deemed to exist in connection with Investments in repurchase agreements which constitute Investments
permitted under Section 7.03;
(n)
normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(o)
Liens created or deemed to exist in connection with a Qualified Securitization Transaction permitted under
Section 7.01(f) (including any related filings of any financing statements), but only to the extent that any such Lien relates to the applicable Receivables Related Assets actually sold, contributed, financed or otherwise conveyed or
pledged pursuant to such transaction;
(p)
Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(q)
Liens existing on the Amendment
No. 24 Effective Date and, to the extent securing obligations in excess of $5,000,000, set forth on
Schedule 7.02;
(r)
Liens securing Indebtedness (or other obligations not constituting Indebtedness) of any member of the
Consolidated Group incurred pursuant to Section 7.01(h)(A) (solely with respect to Indebtedness under the 2014 Indenture as in effect on the date
hereof),B), Section 7.01(h)(C)
and,
Section 7.01(oh)(in the case of clause (o), only to
the extent secured by assets of such Non-Loan Parties which are not CollateralD) and Section 7.01(h)(E);
(s)
Liens securing Indebtedness permitted pursuant to SectionSections 7.01(u) and 7.01(aa); provided that, to the extent such Liens are on the Collateral, such Liens may be either a Lien on the Collateral
that is pari passu with the Lien securing the Obligations or a Lien ranking junior to the Lien on the Collateral securing the Obligations and, in any such case, the beneficiaries thereof (or an agent on their behalf) shall have entered
into an Acceptable Intercreditor Agreement;
(t)
Liens on cash deposits not to exceed $50,000,00025,000,000 in the aggregate at any time outstanding for the purpose of collateralizing certain financial obligations under any workers’ compensation,
unemployment insurance and other types of social security in the ordinary course;
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(u)
Liens on the cash proceeds (and the related escrow account, and any money market funds or securities in which
such cash proceeds are temporarily invested during the applicable escrow period) of any issuance of Indebtedness permitted pursuant to Section 7.01 in connection with the cash proceeds of such Indebtedness being placed into (and pending
the release from) escrow;
(v)
Liens created in the ordinary course of business in favor of banks and other financial institutions over
balances of any bank accounts of any Foreign Subsidiary held at such banks or such financial institutions, as the case may be, to facilitate the operation of cash pooling arrangements in respect of such bank accounts in the ordinary course of
business;
(w)
Liens securing Indebtedness permitted to be secured pursuant to Section 7.01(n) or Section 7.01(p); provided that to the extent such Liens are on the Collateral, such Liens may be either
(x) a Lien that is pari passu with the
LienLiens securing the Obligations
(with respect to Indebtedness incurred pursuant to Section 7.01(n), to the extent such Liens secure Indebtedness in an aggregate principal amount at any one time
outstanding not exceeding $35,000,000) or (y) a Lien ranking junior to the Lien securing the Obligations and, in any such case, the
beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable Intercreditor Agreement;
(x)
[reserved];
(y)
other Liens securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding
not to exceed the greater of (x) $265,000,00050,000,000 and
(y) 4015% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on
a Pro Forma Basis; provided that to the extent such Liens are on the Collateral, such Liens may only rank junior to the Liens securing the Obligations; provided
further that, to the extent such Liens secure Indebtedness for borrowed money, such Indebtedness shall mature no earlier than the Latest Maturity Date or have a Weighted Average Life to Maturity less than the Weighted Average Life to Maturity of the
Revolving Credit Commitments plus ninety-one (91) days; provided however that the foregoing requirements shall not apply to any Qualifying Bridge Facility;
(z)
with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by Law;
(aa)
the modification, replacement, renewal or extension of any Lien permitted by clauses (i) and
(q) above and (dd) below; 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 7.01, 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 7.01;
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(bb)
Liens securing Indebtedness permitted pursuant to Section 7.01(k); provided that,
(i) such Liens shall only secure the obligations secured on the date of the related Permitted Acquisition or other similar Investment and such liens shall not extend to any other property of the Parent Borrower and its Restricted Subsidiaries
that is not after-acquired property of the relevant acquired entities contemplated to be secured by such Indebtedness on the date of assumption thereof (and for the avoidance of doubt, no such after-acquired property shall be property of the Parent
Borrower and its Restricted Subsidiaries in existence prior to such date of assumption) and (ii) to the extent such Liens are on the Collateral, the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable
Intercreditor Agreement;
(cc)
Liens in favor of the Parent Borrower or a Restricted Subsidiary securing Indebtedness permitted under
Section 7.01(e)(i) (provided that, solely with respect to Indebtedness required to be Subordinated Debt under Section 7.01(e)(i), such Lien shall be subordinated to the Liens on the Collateral securing the Obligations
to the same extent);
(dd)
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 6.13), in each case after the date
hereofClosing Date; 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 7.01;
(ee)
Liens securing Indebtedness permitted pursuant to
Section 7.01(q); and Section 7.01(z);
(ff)
Liens securing Hedging
Obligations and obligations existing or arising under any Swap Contract permitted pursuant to Section
7.01(g).;
(gg)
Liens securing Indebtedness
permitted to be secured pursuant to Section 7.01(j); provided that to the extent such Liens are on the Collateral, such Liens may only rank junior to the Liens securing the Obligations; and
(hh)
Liens on assets securing any
Indebtedness owed to any Captive Insurance Subsidiary by the Parent Borrower or any Restricted Subsidiary.
For purposes of determining compliance with this definition, in the event that a Lien meets the criteria of more than one of the categories of
Liens described in clauses (a) through
(ffhh
) above, the Borrowers may, in their sole discretion, classify and reclassify or later divide, classify or reclassify such Lien (or any portion thereof) and will only be required to include the amount
and type of such Lien in one or more of the above clauses; provided that all Liens outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this definition. To
the extent any Lien permitted by this definition may secure Indebtedness permitted by Section 7.01, such Lien shall also be deemed to permit Liens securing obligations not constituting Indebtedness as a result of the accrual of interest,
the accretion of accreted value, the amortization of original issue discount and the payment of interest.
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“Permitted Refinancing” means, with respect to any Person, any
modification (other than a release of such Person), refinancing, refunding, renewal 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 or extended except by an amount equal to unpaid accrued interest and premium thereon, plus amounts that would otherwise be permitted
under Section 7.01 (with such amounts being deemed utilization of the applicable basket or exception under Section 7.01), plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.01, (b) other than with respect to a Permitted
Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(c), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and 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 or extended or, if earlier, the applicable Latest Maturity Date (provided that the foregoing
requirements of this clause (b) shall not apply to any Inside Maturity Debt and any
Qualifying Bridge Facility), (c) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is secured by a Lien on the Collateral, (i) the Lien securing such Indebtedness as modified, refinanced,
refunded, renewed or extended shall not be senior in priority to the Lien on the Collateral securing the Indebtedness being modified, refinanced, refunded, renewed or extended unless otherwise permitted under any basket or exception under the
definition of “Permitted Liens” (with such amounts constituting utilization of the applicable basket or exception under the definition of “Permitted Liens”) and (ii) such Indebtedness as so modified, refinanced,
refunded, renewed or extended shall not be secured by any assets of the Parent Borrower or its Restricted Subsidiaries that does not secure the Indebtedness being modified, refinanced, refunded, renewed or extended, (d) to the extent such
Indebtedness being so modified, refinanced, refunded, renewed or extended is unsecured, such modification, refinancing, refunding, replacement or extension shall also be unsecured unless secured by Liens that are otherwise permitted under any basket
or exception under the definition of “Permitted Liens” (with such amounts constituting utilization of the applicable basket or exception under the definition of “Permitted Liens”) and (e) if such Indebtedness being
modified, refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to Section 7.01, (i) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of
payment to the Obligations, such modification, refinancing, refunding, renewal 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 so modified, refinanced, refunded, renewed or extended unless otherwise permitted by any basket or exception under Section 7.01 (with such amounts constituting utilization of the applicable basket or exception under
Section 7.01), (ii) in the case of Indebtedness initially incurred pursuant to Section 7.01(b), the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and
redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being
modified, refinanced, refunded, renewed or extended (other than in the case of terms applying to periods after the then Latest Maturity Date or otherwise added for the benefit of the Lenders hereunder); provided that a certificate of a
Responsible Officer of the Parent Borrower 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 Parent Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be
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conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Parent Borrower within such five (5) Business Day period
that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by a Person who is the obligor of the
Indebtedness being so modified, refinanced, refunded, renewed or extended, and no additional obligors become liable for such Indebtedness except to the extent permitted by any basket or exception under Section 7.01 (with such amounts
constituting utilization of the applicable basket or exception under Section 7.01).
“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) other than a
Foreign Plan, established or maintained 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.
“Plan Assets” means “plan assets” within the meaning of U.S. Department of Labor Regulation 29 C.F.R.
Section 2510.3-101, as modified by Section 3(42) of ERISA.
“Platform” has the meaning specified in
Section 6.02.
“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 last day of the twenty-four (24) months immediately following the date on
which such Permitted Acquisition or conversion is consummated, or if following December 31, 2027, the last day of
the Specified Period.
“Preferred Stock” as applied to the
Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
“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 or the Consolidated Covenant EBITDA of the Parent Borrower, (a) the
pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA or Consolidated Covenant
EBITDA, as the case may be, that is factually supportable and is expected to have a continuing impact, in each case as determined on a basis consistent with Article 11 of Regulation S-X of the
Securities Act, as interpreted by the Securities and Exchange Commission and (b) additional good faith pro forma adjustments arising out of cost savings initiatives attributable to such transaction and additional costs associated with the
combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the Parent Borrower and its Restricted Subsidiaries, in each case being given pro forma effect, that (i) have been
realized, (ii) subject to the limitations set forth in clause (1)(g) of the definition of
Consolidated EBITDA or Consolidated Covenant EBITDA, will
be implemented following such transaction and are supportable and quantifiable and expected to be implemented within the succeeding twenty-four (24) months
or, if following December 31, 2027, the Specified Period
and, in each case, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to
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administrative functions, (y) reductions of costs related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead
taking into account, for purposes of determining such compliance, the historical financial statements of the Acquired Entity or Business or Converted Restricted Subsidiary and the consolidated financial statements of the Parent Borrower and its
Subsidiaries, assuming such Permitted Acquisition or conversion, and all other Permitted Acquisitions or conversions that have been consummated during the period, and any Indebtedness or other liabilities repaid in connection therewith had been
consummated and incurred or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the interest rate
which is or would be in effect with respect to such Indebtedness as at the relevant date of determination);
provided that, so long as such actions are initiated 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 or Consolidated Covenant 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 incurred during the entirety of such Test Period.
“Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with any test hereunder for an
applicable period of measurement, 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 (as of the last date in the case of a balance sheet item) 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 Restricted Subsidiary of the Parent Borrower or any division, product line, or facility used for operations of the Parent Borrower or
any of its Restricted 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 Parent Borrower or any of its 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, without limiting the application of the Pro
Forma Adjustment pursuant to clause (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 or Consolidated Covenant EBITDA, as applicable, and give effect to
events (including operating expense reductions) that are (as determined by the Parent Borrower in good faith) (i)(x) directly attributable to such transaction, (y) expected to have a continuing impact on the Parent Borrower and its Restricted
Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.
“Public Company Costs” means, as to any Person, 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 and costs relating to compliance with the provisions of the Securities Act and the Exchange Act or any other
comparable body of laws, rules or regulations, as companies with listed equity, directors’ compensation, fees and expense reimbursement, costs relating to enhanced accounting functions and investor relations, shareholder meetings and reports
to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising solely by virtue of the listing of such Person’s equity
securities on a national securities exchange or issuance of public debt securities.
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“Public Lender” has the meaning specified in Section 6.02.
“Qualified Acquisition” means any Permitted Acquisition (other than the acquisition consummated in connection with the
Merger) by the Parent Borrower and its Restricted Subsidiaries, if the aggregate amount of Indebtedness incurred by the Restricted Subsidiaries to finance the purchase price of, or other consideration for, or assumed by the Restricted Subsidiaries
in connection with, such Permitted Acquisition is at least $100,000,000.
“Qualified Acquisition Election” has the
meaning set forth in Section 7.11(a).
“Qualified
Acquisition Securitization Financing” has the meaning set forth in Section 7.01(f).
“Qualified Equity Interests” means any Equity Interests of the Parent Borrower (or any direct or indirect parent of the
Parent Borrower), in each case, that are not Disqualified Equity Interests.
“Qualified Securitization Transaction”
means any Securitization Transaction; provided that (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) under such Securitization Transaction shall be (i) recourse to any member of the Consolidated
Group (other than any Securitization Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse, (ii) supported by Guarantee Obligations of any member of the Consolidated Group (other than any
Securitization Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse or (iii) secured (directly or indirectly, contingently or otherwise) by any Lien on any property of any member of the
Consolidated Group (other than any Securitization Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse, (b) such Securitization Transaction (including financing terms, covenants, termination
events and other provisions) is in the aggregate economically fair and reasonable to the Consolidated Group and any applicable Securitization Subsidiary, (c) all sales, conveyances or other transfers of Securitization Receivables and related
assets to any Securitization Subsidiary are made at fair market value and (d) the financing terms, covenants, termination events and other provisions thereof, including any Standard Securitization Obligations, shall be market terms, in each
case as determined by the Parent Borrower in good faith. For the avoidance of doubt, the Securitization Transactions contemplated by that certain Receivables Financing
Agreement, dated as of February 19, 2020 (as amended, restated, supplemented or otherwise modified through the date hereof), by and among O&M Funding LLC, as borrower, Owens & Minor Medical, Inc., as servicer, the persons from time
to time party thereto, as lenders, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC, as structuring
agent,the Existing Qualified Securitization
constitute a “Qualified Securitization Transaction”.
“Qualifying Bridge Facility” means customary
bridge loans, so long as any loans, notes, securities or other Indebtedness for which such bridge loans are exchanged, replaced or converted satisfy (or will satisfy at the time of such exchange, replacement or conversion) any otherwise applicable
requirements.
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“Rate Determination
Date” means two Business Days prior to the commencement of such Interest Period (or such other date as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent;
provided that, to the extent such market practice is not administratively feasibly for the Administrative Agent, then “Rate Determination Date” means such other day as otherwise reasonably determined by the Administrative
Agent).
“Ratings” means a public corporate family rating
from Moody’s, S&P and Fitch in respect of the Parent Borrower after giving effect to the Transactions and the other transactions contemplated by this Agreement.
“Receivables” means, as of any date of determination, the aggregate net book value of all accounts, accounts receivable,
receivables, and obligations for payment created or arising from the sale of inventory or the rendering of services in the ordinary course of business, whether evidenced by chattel paper, instruments or otherwise, owned by or owing to the Parent
Borrower and its Domestic Subsidiaries on a consolidated basis after deducting allowances or reserves relating thereto, as shown on the books and records of the Parent Borrower and its Domestic Subsidiaries (but excluding, in any event, without
duplication, the aggregate net book value of all Receivables transferred to a Securitization Subsidiary or other Person in connection with a Qualified Securitization Transaction).
“Receivables Related Assets” means (a) any rights arising under the documentation governing or relating to any
Securitization Receivables (including rights in respect of Liens securing such Securitization Receivables and other credit support in respect of such Securitization Receivables), (b) any proceeds of such Securitization Receivables and any
lockboxes or accounts in which such proceeds are deposited, (c) spread accounts and other similar accounts (and any amounts on deposit therein) established in connection with a Qualified Securitization Transaction, (d) any warranty,
indemnity, dilution and other intercompany claim arising out of the documentation evidencing any Qualified Securitization Transaction, and (e) other assets that are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions involving accounts receivable.
“Refinancing”
means the repayment in full, termination of all commitments and release of all liens under the Existing Credit Agreement.
“Refinancing Revolving Commitments” means Incremental Revolving Commitments that are designated by a Responsible Officer of
the Parent Borrower as “Refinancing Revolving Commitments” in a certificate of a Responsible Officer of the Parent Borrower delivered to the Administrative Agent on or prior to the date of incurrence; provided that (i) any
Refinancing Revolving Commitments shall not be in a principal amount that exceeds the amount of Revolving Credit Commitments so refinanced, except to the extent a different incurrence basket pursuant to Section 7.01 is utilized plus an
amount equal to any fees, expenses, commissions, underwriting discounts and premiums payable in connection with such Refinancing Revolving Commitments, (ii) to the extent applicable, an Acceptable Intercreditor Agreement is entered into,
(iii) other than with respect to any Inside Maturity Debt and any Qualifying Bridge Facility, any
Refinancing Revolving Commitment does not mature prior to the maturity date of or have scheduled amortization or commitment reductions prior to the maturity date of the Revolving Credit Commitments being refinanced, (iv) such Refinancing
Revolving Commitments have the same guarantors as the Revolving Credit Commitments being refinanced unless such guarantors substantially concurrently guarantee the Obligations, (v) such Refinancing Revolving
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Commitments are secured by the same assets as the Revolving Credit Commitments being refinanced unless such assets substantially concurrently secure the Obligations and (vi) the terms and
conditions of such Refinancing Revolving Credit Commitments (excluding pricing and optional prepayment or redemption terms or covenants or other provisions applicable only to periods after the Maturity Date of the Loans or Commitments being
refinanced) shall reflect market terms and conditions at the time of incurrence or issuance (as reasonably determined by the Parent Borrower in good faith) and (vii) if such Refinancing Revolving Credit Commitments contain any financial
maintenance covenants, such covenants shall be added for the benefit of the Revolving Credit Lenders.
“Register” has
the meaning specified in Section 10.07(d).
“Reinvestment
Period” has the meaning specified in Section 2.05(b)(ii)(B).
“Rejection Notice” has the meaning specified in Section 2.05(b)(v).
“Release” means any release, spill, emission, discharge, deposit,
disposal, leaking, pumping, pouring, dumping, emptying, injection, migration or leaching on, into or through the Environment or into, from or through any building, structure or facility.
“Relevant Rate” means, with respect to any Loan denominated in (a) Sterling, SONIA, (b) Euros, EURIBOR,
(c) Japanese Yen, TIBOR, (d) Australian Dollars, BBSY, (e) Canadian Dollars, CDORTerm CORRA and (f) Dollars, SOFR, as applicable.
“Reportable Event” means, with respect to any Pension Plan, any of the events set forth in Section 4043(c) of ERISA or
the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.
“Request
for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and
(c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Lenders” means, as of any date of
determination, Lenders having more than 50.0% of the sum of the (a) Total Outstandings (with the aggregate outstanding 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 the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or
deemed held by any Defaulting Lender or Lenders that are Affiliates of the Parent Borrower shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Credit Lenders” means, as of any date of determination, Lenders having more than 50.0% in the aggregate
of (a) the Revolving Credit Commitments or (b) after the termination of the Revolving Credit Commitments, the Revolving Credit Exposure; provided that the Revolving Credit Commitment and the Revolving Credit Exposure of any
Defaulting Lender or Affiliates of the Parent Borrower shall be excluded for the purposes of making a determination of Required Revolving Credit Lenders.
“Rescindable Amount” has the meaning as defined in Section 9.16.
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“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,
president, vice president, chief financial officer, treasurer, assistant treasurer, or other similar officer or director of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party and,
solely for purposes of notices given pursuant to Article II, any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the
applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and 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, 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
Debt” means Indebtedness for borrowed money of any Loan Party that (a) is Subordinated Debt, (b) is unsecured, (c) is secured by a Lien on the Collateral that is junior to the Liens securing the Loans or (d) solely for
purposes of Section 7.08, has a final scheduled maturity date prior to January 31, 2030 (other than a Qualified Securitization Transaction or other Indebtedness with respect to which a Non-Loan Party is obligated) and such Indebtedness is
in an individual principal amount in excess of the Threshold Amount.
“Restricted Debt Documents” means any agreement, indenture or instrument pursuant to which any Restricted
Debt is issued, in each case as amended, restated, supplemented or otherwise modified from time to time.
“Restricted
Disposition” has the meaning specified in Section 2.05(b)(vii).
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect
to any Equity Interest in the Parent Borrower 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 holders of Equity Interests of the Parent Borrower.
“Restricted Subsidiary” means any Subsidiary of the Parent Borrower other than an Unrestricted Subsidiary.
“Revaluation Date” means, (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of an
Alternative Currency Loan, (ii) each date of a continuation of an Alternative Currency Term Rate Loan pursuant to Section 2.02, (iii) with respect to calculations of the Dollar Equivalent made pursuant to
Section 2.12, each date a payment is made in Dollars in lieu of a currency other than Dollars, and (iv) such additional dates as are set forth in this Agreement; and (b) with respect to any Letter of Credit, each of the
following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the
increased amount), (iii) each date of any payment by an L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (iv) in the case of all Existing Letters of Credit denominated currencies other than Dollars, if any, the
Closing Date, and (v) such additional dates as the Administrative Agent or the applicable L/C Issuers shall determine or the Required Lenders shall require.
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“Revolving Credit Borrowing” means a borrowing consisting of Revolving
Credit Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Term SOFR Loans and Alternative Currency Term Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders
pursuant to Section 2.01.
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to Section 2.01 or Section 2.03, as applicable, (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 2.01I to Amendment
No. 4 under the caption “Revolving Credit Commitment” or in the Assignment and Assumption 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. The aggregate Revolving Credit Commitments of all Revolving Credit Lenders shall be
(i) $300,000,000
on the Closing Date and (ii) $450,000,000 on the Amendment No. 24 Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement (the “Aggregate Revolving Commitment Amount”).
“Revolving Credit Commitment Increase” has the meaning specified in Section 2.14.
“Revolving Credit Exposure” means, as to each Revolving Credit Lender at any time, the sum of (a) the outstanding
principal amount of all Revolving Credit Loans held by such Revolving Credit Lender (or its Applicable Lending Office), (b) such Revolving Credit Lender’s Applicable Percentage of the L/C Obligations and (c) such Revolving Credit
Lender’s Applicable Percentage of the Swing Line Obligations.
“Revolving Credit Facility” has the meaning specified in the Preliminary Statements to this Agreement.
“Revolving Credit Lender” means, at any time, any Lender that has a
Revolving Credit Commitment or that holds Revolving Credit Loans at such time.
“Revolving Credit Loan” has the meaning
specified in Section 2.01.
“Revolving Credit Note” means a promissory note of any Borrower or Borrowers
payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit C hereto, evidencing the aggregate Indebtedness of the such Borrower or Borrowers to such Revolving Credit Lender resulting from the
Revolving Credit Loans made by such Revolving Credit Lender.
“S&P” means Standard & Poor’s
Financial Services LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sale Leaseback” means any
transaction or series of related transactions pursuant to which the Parent Borrower or any of its Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and
(b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.
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“Same Day Funds” means (a) with respect to disbursements and
payments in Dollars, immediately available funds, (b) with respect to disbursements and payments in Euro, same day or other funds as may be determined by the Administrative Agent to be customary in the place of disbursement or payment for the
settlement of international banking transactions in Euro and (c) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the applicable L/C Issuer to be customary in the place of
disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or
target of comprehensive Sanctions Laws and Regulations.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions Laws and
Regulations-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union, the United Kingdom
or the Government of Canada, (b) any Person operating from, or organized or resident in, a Sanctioned Country, (c) any Person directly or indirectly 50% or more owned or controlled by any such Person or Persons described in the foregoing
clause (a) or clause (b) or (d) any Person otherwise the target of any Sanctions Laws and Regulations.
“Sanctions Laws and Regulations” means (a) any sanctions or related requirements imposed by the USA PATRIOT Act, the Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the
Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, all as amended, or any of the foreign assets
control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control or the U.S.
Department of State enacted in the United States on or after the date of this Agreement, or (b) any sanctions or related requirement imposed or administered by the European Union, the United Nations Security Council, or the United Kingdom.
“Scheduled Unavailability Date” has the meaning specified in Section 3.02(b)(ii).
“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal
functions.
“Second Amendment” means
that certain Amendment No. 2 to this Agreement, dated as of March 29, 2022, by and among the U.S. Borrowers, the Parent Borrower, the Guarantors party thereto, the Lenders party thereto, the Administrative Agent, the Collateral Agent, the
Swing Line Lender and Bank of America, N.A., as L/C Issuer.
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“Secured Bilateral Letter of Credit” means any Bilateral Letter of Credit
that is issued by a Bilateral Letter of Credit Bank for the benefit of any Loan Party or any Restricted Subsidiary.
“Secured
Hedge Agreement” means any Swap Contract that is entered into by and between any Loan Party or any Restricted Subsidiary and any Hedge Bank; provided that, in no event shall any Swap Contract constitute a Secured Hedge Agreement
hereunder to the extent that the obligations of any Loan Party or any other Restricted Subsidiary arising under such Swap Contract constitute “Obligations” under and as defined in the Term Loan Credit Agreement.
“Secured Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt that is
secured by a Lien on the Collateral as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the L/C Issuers, the
Hedge Banks, the Cash Management Banks, the Bilateral Letter of Credit Banks, the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.02.
“Secured Party Designation Notice” means a notice from any Bilateral Letter of Credit Bank substantially in the form of
Exhibit I.
“Securities Act” means the Securities Act of 1933.
“Securitization Receivables” has the meaning specified in the definition of “Securitization Transaction”.
“Securitization Subsidiary” means (a) O&M Funding LLC, a Delaware limited liability company, and (b) any
other wholly-owned Special Purpose Vehicle (other than, for the avoidance of doubt, any Loan Party) which engages in no activities other than those reasonably related to or in connection with the entering into of Securitization Transactions and
which is designated by the board of directors of the Parent Borrower (as provided below) as a Securitization Subsidiary; provided that no member of the Consolidated Group shall (i) provide credit support to such Securitization Subsidiary
other than Limited Originator Recourse, (ii) have any contract, agreement, arrangement or understanding with such Securitization Subsidiary other than on terms that are fair and reasonable and that are no less favorable to such member of the
Consolidated Group than could be obtained from an unrelated Person (other than representations, warranties and covenants (including those relating to servicing) entered into in the ordinary course of business in connection with a Qualified
Securitization Transaction and intercompany notes relating to the sale of Securitization Receivables to such Securitization Subsidiary and Limited Originator Recourse) or (iii) have any obligation to maintain or preserve such Securitization
Subsidiary’s financial condition or to cause such Securitization Subsidiary to achieve certain levels of operating results other than Limited Originator Recourse. Any such designation by the board of directors of the Parent Borrower (other
than with respect to O&M Funding LLC) shall be evidenced to the Administrative Agent and each Lender by filing with the Administrative Agent and each Lender a certified copy of the resolutions of the board of directors of the Parent Borrower
giving effect to such designation.
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“Securitization Transaction” means any financing transaction or series of
financing transactions that have been or may be entered into by a member of the Consolidated Group pursuant to which such member of the Consolidated Group may sell, convey or otherwise transfer to any Person (including, without limitation, a
Securitization Subsidiary) or may grant a security interest in any accounts receivable, notes receivable, rights to future lease payments or residuals or other similar rights to payment (the “Securitization Receivables”) (whether
such Securitization Receivables are then existing or arising in the future) of such member of the Consolidated Group, and any assets related thereto, including without limitation, all security interests in merchandise or services financed thereby,
the proceeds of such Securitization Receivables, and other assets which are customarily sold or in respect of which security interests are customarily granted in connection with securitization transactions involving such assets.
“Security Agreement” means, collectively,
the First Lien that certain Security
Agreement executed
by, dated as of March 10, 2021, between, among others, the Loan Parties party thereto on the Closing Date substantially in the form of Exhibit Has of the
date thereof and the Collateral Agent (as amended by Amendment No. 2) as supplemented by any Security Agreement Supplement executed and delivered pursuant to Section 6.10.
“Security Agreement Supplement” means a supplement to any Security Agreement as contemplated by such Security
Agreement.
“Senior Notes” means, collectively, the 2014 Indenture Notes, the 2021 Indenture Notes and the 2022
Indenture Notes.
“SOFR” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New
York.
“SOFR Adjustment” means
(a) with respect to Daily Simple SOFR, 0.10% and (b) with respect to Term SOFR, 0.10%.
“Sold Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA.”
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such
date (i) the fair value of the property of such Person is greater than the total amount of debts and liabilities, contingent, subordinated or otherwise, of such Person, (ii) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the liability of such Person on its debts as they become absolute and matured, (iii) such Person will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as they
become absolute and matured and (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital;
provided that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual
or matured liability.
“SONIA” means, with respect to any applicable determination date, the Sterling Overnight Index
Average Reference Rate published on the fifth Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to
time); provided however that if such determination date is not a Business Day, SONIA means such rate that applied on the first Business Day immediately prior thereto.
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“SONIA Adjustment” means, with respect to
SONIA, 0.0326% per annum.
“Special Notice
Currency” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.
“Special Purpose Vehicle” means a trust, partnership, or other entity established by any member of the Consolidated Group
to implement a Qualified Securitization Transaction.
“SPC” has the meaning specified in Section 10.07(h).
“Special
Controlled Entity” means any person that the Parent Borrower or any Subsidiary owns or holds, directly or indirectly, a majority of the economic interests in or otherwise Controls, other than, in each case, a Restricted
Subsidiary.
“Specified Communications” has the meaning
specified in Section 10.02(g).
“Specified
Default” means a Default pursuant to Section 8.01(a).
“Specified Event of Default” means an Event of Default pursuant to Sections 8.01(a), 8.01(f) or 8.01(g) (in
the case of Section 8.01(f) or 8.01(g), with respect to the Parent Borrower or the other Borrowers).
“Specified Permitted Acquisition” means Permitted Acquisition or any other similar Investment not
prohibited hereunder provided that immediately after giving effect to such Permitted Acquisition or other similar Investment, (a) the First Lien Leverage Covenant Ratio for the most recently ended Test Period on a Pro Forma Basis is less than
or equal to 3.25:1.00 and (b) the Total Leverage Covenant Ratio for the most recently ended Test Period on a Pro Forma Basis is not greater than the Total Leverage Covenant Ratio immediately prior to the consummation of such Permitted
Acquisition or other similar Investment.
“Specified
Representations” means the representations and warranties of the Borrowers set forth in Sections 5.01(a) (solely as it relates to Parent Borrower and the other Borrowers), 5.01(b)(ii), 5.02(a) (related to the entering
into and performance of the Loan Documents and the incurrence of the extensions of credit thereunder), 5.02(b)(i) (related to the entering into and performance of the Loan Documents and the incurrence of the extensions of credit thereunder),
5.04, 5.12, 5.15, 5.16 and 5.18.
“Specified Transaction” means any Investment,
incurrence or repayment of Indebtedness, Restricted Payment, Subsidiary designation or Incremental Revolving Commitments or Extended Revolving Credit Commitments that by the terms of this Agreement requires such test to be calculated on a “Pro
Forma Basis” or after giving “Pro Forma Effect”; provided that any increase in the Revolving Credit Commitment above the Revolving Credit Commitments in effect on the Closing Date, for purposes of this “Specified
Transaction” definition, shall be deemed to be fully drawn; provided, further, that at the Parent Borrower’s sole election, any such Specified Transaction (other than a Restricted Payment) having an aggregate value
of less than $30,000,000 shall not be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
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“Spot Rate” means, in relation to the conversion of one currency into
another currency, the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency
through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer
may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Standard Securitization Obligations” means representations, warranties, covenants, indemnities and other obligations
entered into by any member of the Consolidated Group (other than any Securitization Subsidiary) which are reasonably customary in Securitization Transactions.
“Sterling” means the lawful currency of Great Britain.
“Subordinated Debt” means Indebtedness incurred by a Loan Party that is subordinated in right of payment to the prior
payment of all Obligations of such Loan Party under the Loan Documents.
“Subordinated Debt Documents” means any
agreement, indenture or instrument pursuant to which any Subordinated Debt is issued, in each case as amended to the extent permitted under the Loan Documents.
“Subsidiary” of a Person means a corporation, company, partnership, joint venture, limited liability company or other
business entity of which 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, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Borrower.
“Subsidiary Guarantor” means, collectively, the Subsidiaries of the Parent Borrower that are Guarantors.
“Successor Borrower” has the meaning specified in Section 7.04(d).
“Successor Rate” has the meaning specified in Section 3.02(b).
“Supermajority
Lenders” means, as of any date of determination, Lenders having more than 662/3% of the sum of the (a) Total Outstandings
(with the aggregate outstanding 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 the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by any Defaulting Lender or Lenders that are Affiliates of the Parent Borrower shall be
excluded for purposes of making a determination of Supermajority Lenders.
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“Supplemental Administrative Agent” has the meaning specified in
Section 9.13(a) and “Supplemental Administrative Agents” shall have the corresponding meaning.
“Supported QFC” has the meaning specified in Section 10.27.
“Survey” means a survey of any Mortgaged
Property (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) certified by the surveyor (in a manner
reasonably acceptable to the Administrative Agent) to the Administrative Agent, the Collateral Agent and the Title Company and the applicable Loan Party, (iii) complying in all respects with the minimum detail requirements of the American Land
Title Association as such requirements are in effect on the date of preparation of such survey, (iv) sufficient for the Title Company to remove all standard survey exceptions from the Mortgage Policy relating to such Mortgaged Property and
issue the endorsements of the type required by paragraph (f) of the definition of Collateral and Guarantee Requirement and (v) otherwise reasonably acceptable to the Administrative Agent.
“Surviving Indebtedness” means Indebtedness of the Parent Borrower or any
of its Subsidiaries outstanding immediately after giving effect to the repayment in full, termination of all commitments and release of all liens under the Existing
Apria Credit Agreementthe Amendment No. 4 Effective Date.
“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 any obligation of any Guarantor to pay or perform under any agreement,
contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“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 by the Hedge Bank (or the Parent Borrower, if no Hedge Bank is party to such Swap
Contract) in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under similar arrangements by the Hedge Bank (or the Parent Borrower, if no Hedge Bank is party to such Swap Contract).
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“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
“Swing Line Lender” means Bank of America, in its capacity as provider of Swing Line Loans,
or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified 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 B or such other form as approved by the Administrative Agent (including any form on an electronic platform or transmission system as shall be
approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrowers.
“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) $75,000,000 and (b) the aggregate principal
amount of the Revolving Credit Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Commitments.
“TARGET2” means 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.
“TARGET Day” means any day on which TARGET2
(or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes” means all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings (including
backup withholding) or other charges imposed by any Governmental Authorities, including additions to tax, penalties and interest with respect thereto.
“Term Facility” means the term loan commitments made available to the Borrowers in an initial aggregate principal amount of
$1,100,000,000 under the Term Loan Credit Agreement (as in effect on the Amendment No. 4 Effective
Date).
“Term Loan Credit Agreement” means that certain
Term Loan Credit Agreement, dated as of March 29, 2022, by and among the U.S. Borrowers, as borrowers, the Parent Borrower, the Lenders (as defined therein) party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as the same may
be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Term Loans” means
the term loans made to the Borrowers under the Term Loan Credit Agreement.
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“Term SOFR” means:
(a)
for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate
two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term
SOFR means the Term SOFR Screen Rate on the first U.S. Government securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and
(b)
for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term
SOFR Screen Rate with a term of one month commencing that day;
provided, that if the Term SOFR determined in
accordance with either of the foregoing provisions (a) or (b) of this definition would be zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Replacement Date” has the meaning specified in Section 3.02(b).
“Term SOFR Scheduled Unavailability Date” has the meaning specified in Section 3.02(b).
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator
satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“Test Period” means, at any date of determination, the most recently completed four consecutive fiscal quarters of the
Parent Borrower ending on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 4.01, Section 6.01(a) or 6.01(b).
“Threshold Amount” means
$50,000,00025,000,000
.
“Title Company” means any title insurance
company as shall be retained by the Parent Borrower to issue the Mortgage Policies and reasonably acceptable to the Administrative Agent.
“Total
Leverage Covenant Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated Covenant EBITDA of the Parent Borrower and its Restricted
Subsidiaries for such Test Period.
“Total Leverage Ratio”
means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
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“Transactions” means, collectively, as applicable, (a) the Merger
and other related transactions contemplated by the Merger Agreement, (b) the funding of the Initial Term Borrowing (as defined in the Term Loan Credit Agreement) under the Term Loan Credit Agreement, (c) the execution and delivery of the
Loan Documents (as defined in the Term Loan Credit Agreement), (d) the payment of Transaction Expenses, (e) the issuance of the 2022 Indenture Notes and (f) the execution and delivery of the Second
Amendment No. 2.
“Transaction Expenses” means any fees or expenses incurred or paid by
Parent Borrower, the Borrowers, or any Restricted Subsidiary in connection with the Transactions and the Amendment
No. 4 Transactions and, in each case, the transactions contemplated in connection therewith.
“Type” means, with respect to a Loan, its character as a Base Rate Loan, a Daily Simple SOFR Swingline Loan, a Term SOFR
Loan, an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan.
“UCP” means, with respect to
any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time
to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes
certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Ultimate Parent Entity” means any direct or indirect parent of the Parent Borrower.
“Unaudited Parent Borrower Financial Statements” means an unaudited pro forma consolidated balance sheet and related
unaudited pro forma consolidated statement of income of the Parent Borrower and its Subsidiaries for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended December 31, 2021, prepared
after giving effect to the Transactions as if the Transactions had occurred on such date (in the case of such pro forma balance sheet) or on the first day of such period (in the case of such pro forma statement of income), as applicable, which need
not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting.
“Undisclosed Administration” means in relation to a Lender or its parent company the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction
supervision if applicable law requires that such appointment is not to be publicly disclosed.
“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.
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“United States” and “U.S.” mean the United States of
America.
“United States Tax Compliance Certificate” has the meaning specified in Section 3.01.
“Unrestricted Incremental First Lien
Amount” means, with respect to the incurrence or issuance of Incremental Revolving Commitments or Incremental Equivalent Debt, an amount not to exceed the greater of (i) $660,000,000 and (ii) 100.0% of Consolidated EBITDA of the
Parent Borrower and its Restricted Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis), in the aggregate for all such incurrences or issuances after the Amendment No. 2 Effective Date.
“Unrestricted Subsidiary” means (i) each Subsidiary of the Parent Borrower listed on Schedule
1.01B[reserved], (ii) any Subsidiary of the
Parent Borrower designated by the Parent Borrower as an Unrestricted Subsidiary pursuant to Section 6.13 subsequent to the ClosingAmendment No. 4 Effective Date and (iii) any Subsidiary of an
Unrestricted Subsidiary. As of the Amendment No. 4 Effective Date, no Subsidiary of the Parent Borrower is
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 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.
“U.S. Borrowers” has the meaning specified in the introductory paragraph hereof.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities
Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such date is a legal holiday under the federal laws of the United States or the laws of the State of New
York, as applicable.
“Voluntary Prepayment Amount” has the meaning specified in Section 2.14(a).
“Voting Stock” means, with respect to any Person, the voting stock or other securities of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or Persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a
contingency.
“Waived
Proceeds” has the meaning specified in the Term Loan Credit Agreement.
“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.
“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.
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“Withdrawal Liability” means the liability of a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with
respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that
liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to
suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02. 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) (i) 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.
(i) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(ii) The term “including” is by way of example and not limitation.
(iii) 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.
(c) 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.”
(d) 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.
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 Audited Parent Borrower Financial
Statements, except as otherwise specifically prescribed herein.
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(b) Notwithstanding anything to the contrary herein, for purposes of determining compliance
with any test contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured 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.
(c) Where reference is made to
“the Parent Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language, such consolidation shall not include any Subsidiaries of the Parent Borrower other than Restricted Subsidiaries.
Section 1.04.
RoundingRounding
. Any financial ratios 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 Organization 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 any Loan Document; (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law; and (c) any reference herein to
any Person shall be construed to include such Person’s successors and permitted assigns.
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. Currency Equivalents
Generally.
.
(a) Any amount specified in this Agreement (other than in Article II, Article IV and Article X or as set forth in
paragraph (b), (c) or (d) of this Section) or any of the other Loan Documents to be in Dollars shall also include the Dollar Equivalent of such amount in any currency other than Dollars. The Administrative Agent or the
applicable L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating such Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Euro or an Alternative Currency.
Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Notwithstanding the foregoing, for purposes
of determining compliance with Sections 7.01, 7.02 and 7.03 with respect to any amount of any Liens, Indebtedness or Investment in a currency other than Dollars, no Default shall be deemed to have occurred solely as a result of
changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred; provided that, for the avoidance of doubt, the foregoing provisions of this Section 1.08 shall otherwise apply to such Sections,
including with respect to determining whether any Indebtedness or Investment may be incurred at any time under such Sections.
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(b) For purposes of determining compliance under Sections 7.03, 7.05 and
7.06, any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating net income in the Parent Borrower’s annual financial statements delivered pursuant to
Section 6.01(a); provided, however, that the foregoing shall not be deemed to apply to the determination of any amount of Indebtedness.
(c) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of an Alternative Currency Loan, an
amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Alternative Currency Loan is denominated in Euro, such amount shall be the Euro Equivalent of such Dollar amount (rounded to the nearest euro cent,
with 0.5 of a euro cent being rounded upward), as determined by the Administrative Agent.
(d) Wherever in this Agreement in connection
with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the applicable L/C Issuer.
Section 1.09. Certain Calculations and Tests.
.
(a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating any applicable ratio or determining other
compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom) in connection with a Specified
Transaction undertaken in connection with the consummation of a Limited Condition Transaction, the date of determination of such ratio or other applicable covenant and determination of whether any Default or Event of Default has occurred, is
continuing or would result therefrom or other applicable covenant, shall, at the option of the Parent Borrower (the Parent Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT
Election”), be deemed to be either (A) the date that the definitive agreements for such Limited Condition Transaction are entered into or (B) solely in connection with an acquisition to which the United Kingdom City Code on
Takeovers and Mergers (the “City Code”) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target company is made in compliance with the City Code (any such date,
the “LCT Test Date”) and if, after such ratios and other provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other Specified Transactions to be entered into in connection
therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four consecutive fiscal quarter period being used to calculate such financial ratio ending prior to the LCT Test Date,
the Parent Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with; provided that, notwithstanding anything to the contrary
herein, at the time of a Limited Condition Transaction no Specified Event of Default shall have occurred and be continuing or would result therefrom. For the avoidance of doubt, (x)
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if any of such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA or Consolidated Covenant EBITDA, as applicable, of the Parent Borrower)
at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited
Condition Transaction is permitted hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation of such Limited Condition Transaction or related Specified Transactions. If the Parent Borrower has made an
LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction 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 for, or “Rule 2.7 announcement” in respect of, as applicable, such Limited Condition Transaction is terminated or
expires without consummation of such Limited Condition Transaction, any such ratio or basket 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.
(b) [Reserved.].
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VII, if any Indebtedness, Lien,
Investment, Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt (or a portion thereof) would be permitted pursuant to one or more provisions described therein, the Parent Borrower may divide and classify such Indebtedness, Liens, Investments,
Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt (or a portion thereof) in any manner that complies with the covenants set forth in Article VII, and may later divide and reclassify any such Indebtedness, Lien, Investment,
Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt so long as the Indebtedness, Lien, Investment, Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt (as so redivided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such redivision or reclassification; provided that any
such divisions, classifications, redivisions and/or reclassifications shall only be permitted within a specific type of covenant, and not, for the avoidance of doubt, across different types of covenants.
(d) Any prior
utilization by the Parent Borrower and its Subsidiaries of any basket hereunder prior to the Amendment No. 4 Effective Date shall be reset to zero as of the Amendment No. 4 Effective Date such that, as of the Amendment No. 4 Effective
Date, each basket hereunder shall be fully available to the Parent Borrower and its Subsidiaries as if such basket had not been previously utilized hereunder
Section 1.10. Additional Alternative
Currencies..
(a) The Borrowers may from time to time request that Letters of Credit or
Revolving Credit Loans be issued in a currency other than those specifically listed in the definition of “Alternative Currency”, as
applicableDollars; provided that such
requested currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. Such request shall be subject to the approval of the Administrative Agent
and, other than in relation to each of Euro, Sterling, Yen, Canadian Dollars and Australian Dollars, the applicable L/C Issuer or Revolving Credit Lender, as applicable; provided that such approval may require, without limitation, that a condition to the issuance of a Letter of Credit denominated in such
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additional Alternative Currency or the making of a
Revolving Credit Loan denominated in such additional Alternative Currency, as applicable, shall be
that there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which, in the reasonable opinion of the Administrative Agent or the relevant L/C
Issuer or Revolving Credit Lender, as applicable, would make it impracticable for such L/C Credit Extension or Revolving Credit Loan, as applicable, to be denominated in the relevant Alternative Currency or Alternative Currency, as applicable.
(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20 Business Days prior to the date of the desired
Credit Extension (or such other time or date as may be agreed by the Administrative Agent and the applicable L/C Issuer or Revolving Credit Lender in their sole discretion). The Administrative Agent shall promptly notify each L/C Issuer or Revolving
Credit Lender in the case of any such request. Each L/C Issuer or Revolving Credit Lender shall notify the Administrative Agent, not later than 11:00 a.m., 10 Business Days after receipt of such request whether, to the extent it has the right to consent, it consents, in its sole
discretion, to the issuance of Letters of Credit or the making of a Revolving Credit Loan in such requested currency.
(c) Any
failure by an L/C Issuer or Revolving Credit Lender to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such L/C Issuer or Revolving Credit Lender to permit Letters of Credit to be
issued or the making of Revolving Credit Loans in such requested currency. If the Administrative Agent and an L/C Issuer consent to the issuance of Letters of Credit or the making of Revolving Credit Loans in such requested currency, the
Administrative Agent shall so notify the Borrowers and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit issuances by such L/C Issuers or the making of any Revolving
Credit Loans by such Revolving Credit Lenders. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.10, the Administrative Agent shall promptly so notify the Borrowers.
Section 1.11. Letter of Credit
Amounts..
Unless otherwise specified herein, the amount of a Letter of Credit or a Bilateral Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of
Credit or Bilateral Letter of Credit in effect at such time; provided, however, that with respect to any (a) Letter of Credit that, by its terms or the terms of any Letter of Credit Application 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, and (b) Bilateral Letter of Credit that, by its terms or the term of any issuance document related thereto, provides for one or more automatic increases in the stated amount thereof, the
amount of such Bilateral Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Bilateral Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect
at such time. 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 any reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
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Section 1.12. Divisions.. For all purposes under the Loan Documents, in connection with any division under Delaware law (including any Delaware LLC Division or any comparable event under a different jurisdiction’s laws): (a) if
any asset, right, obligation or liability of any
Person becomes the asset, right, obligation or liability of a different Person, then it shall be
deemed to have been transferred from the original Person to the subsequent Person and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its
Equity Interests at such time.
Section 1.13. Interest Rates.. The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to (a) the administration, submission or any other matter related to
any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or replacement for or successor to any such rate
(including, without limitation, any Successor Rate) (or any component of any of the foregoing) or the effect of any of the foregoing, or of any Conforming Changes or (b) the administration, submission or any other matter related to the rates in
the definition of “Alternative Currency Daily Rate”, “Alternative Currency Term Rate” or with respect to any rate that is an alternative or replacement for or successor to any such rate or the effect of any of the foregoing,
or of any Conforming Changes. The Administrative Agent and its affiliates or other related entities may engage in transactions or other activities that may affect any reference rate referred to herein, or any alternative, successor or replacement
rate (including, without limitation, any Successor Rate) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select
information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Successor Rate) (or any component of any of the
foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, to the extent such determinations are made in accordance with this
Agreement, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to
or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
ARTICLE II
THE
COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The LoansThe
Loans. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make (or cause its Applicable Lending Office to make) loans denominated in
Dollars or any Alternative Currency (each such loan, a “Revolving Credit Loan”) to the Borrowers from time to time, on any Business Day on or after the Closing Date until the Maturity Date with respect to the Amendment No. 4 Revolving Credit Facility, in an aggregate
principal amount (based on the Dollar Equivalent thereof) not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided that after giving effect to any such Revolving Credit Borrowing, the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment. Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this
Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans denominated in Dollars may be Base Rate Loans or Term SOFR Loans and Revolving Credit Loans denominated in any
Alternative Currency shall be Alternative Currency Loans, as further provided herein.
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Section 2.02. Borrowings, Conversions and Continuations of Loans..
(a) Each Revolving Credit Borrowing, each conversion of Loans from one Type to the other, and
each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the Parent Borrower’s irrevocable notice, to the Administrative Agent, which may be given by telephone. Each such notice must be received by the
Administrative Agent substantially in the form attached hereto as Exhibit A-1 or Exhibit A-2, as applicable, or any other form that 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, (i) in the case of a Term SOFR Loan, not later than 1:00 p.m., New York City time, three (3) Business Days (or, in respect of a proposed Borrowing on the Amendment No. 4 Effective Date, one (1) Business Day) before the date of the proposed Borrowing, (ii) in the case of Loans denominated in Alternative Currencies (other than Yen) not later than 1:00 p.m. New York City time, four (4) Business Days (or 5
Business Bays in the case of a Special Notice Currency) before the date of the proposed Borrowing or, in the case of Alternative Currency Term Rate Loans, any continuation, (iii) in the case of Loans denominated in Yen, not later than 1:00 p.m.
New York City time, five (5) Business Days before the date of the proposed Borrowing or continuation or (iv) in the case of a Base Rate Loan, not later than 1:00 p.m., New York City time, on the Business Day of the proposed Borrowing;
provided, however, that (x) if the Borrowers wish to request Alternative Currency Term Rate Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest
Period,” the applicable notice must be received by the Administrative Agent not later than 1:00 p.m. New York City time five (5) Business Days (or six (6) Business Days in the case of a Special Notice Currency) prior to the requested
date of such Borrowing or continuation of Alternative Currency Term Rate Loans, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of
them and not later than 1:00 p.m. New York City time, four (4) Business Days (or five (5) Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing or continuation of Alternative Currency Term
Rate Loans, the Administrative Agent shall notify the Borrowers (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders and (y) if the Borrowers wish to request Term SOFR Loans
having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 1:00 p.m. five
(5) Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is
acceptable to all of them and not less than 1:00 p.m. New York City time, four (4) Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by
telephone) whether or not the requested Interest Period has been consented to by all the Lenders and the Administrative Agent. Each telephonic notice by the Borrowers pursuant to this Section 2.02(a) must be confirmed promptly by hand
delivery, telecopy or electronic transmission to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Parent Borrower. Each Borrowing of, conversion to or continuation of
Term SOFR Loans or Alternative Currency Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be a minimum of $500,000 (and any amount in
excess thereof shall be an integral multiple of $100,000) (other than a Base Rate Loan comprising a Swing Line Loan). Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrowers are requesting a Revolving
Credit Borrowing (and whether such Revolving Credit Borrowing shall be denominated in Dollars or an Alternative Currency), a conversion of Loans from one Type to
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the other, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall
be a Business Day), (iii) the Class, currency and principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration
of the Interest Period with respect thereto and (vi) the location and number of the Borrowers’ accounts to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(b). If the Borrowers fail to
specify a currency in a Committed Loan Notice requesting a Borrowing, then the applicable Loans shall be made in Dollars. If the Borrowers fail to specify a Type of Loan in a Committed Loan Notice or fail to give a timely notice requesting a
conversion or continuation, then the applicable Loans shall be made or continued as, or converted to Base Rate Loans denominated in Dollars; provided, however, that in the case of a failure to timely request a continuation of
Alternative Currency Term Rate Loans, such Loans shall be continued as Alternative Currency Term Rate Loans in their original currency with an Interest Period of one (1) month. Any such automatic conversion or continuation shall be effective as
of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loans or Alternative Currency Term Rate Loans. If the Borrowers request a Borrowing of, conversion to, or continuation of Term SOFR Loans or Alternative
Currency Term Rate Loans in any such Committed Loan Notice, but fail to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. For the avoidance of doubt, the Borrowers and Lenders acknowledge and
agree that any conversion or continuation of an existing Loan shall be deemed to be a continuation of that Loan with a converted interest rate methodology and not a new Loan. Except as otherwise specified in this Agreement, no Alternative Currency
Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be repaid in the original currency of such Alternative Currency Loan and reborrowed in the other currency.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Appropriate Lender of the amount of its
Applicable Percentage of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Parent Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic
conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make (or cause its Applicable Lending Office to make) the amount of its Loan available to the Administrative Agent in Same Day Funds at the
Administrative Agent’s Office for the applicable currency not later than 1:00 p.m. (or 1:00 p.m. (London time) in the case of Loans denominated in Euro) on the Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the Credit Extensions on the Closing Date, Section 4.01), the Administrative Agent shall, not later than 3:00 p.m. on the
borrowing date specified in such Committed Loan Notice, make all funds so received available to the Borrowers in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrowers on the books of the
Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrowers.
(c) Except as otherwise provided herein, a Term SOFR Loan or Alternative Currency Term Rate Loan may be continued or converted only on the last
day of an Interest Period for such Loan unless the Borrowers pay the amount due, if any, under Section 3.04 in connection therewith. During the existence of an Event of Default, the Administrative Agent or the Required Lenders may
require that (i) no Loans may be converted to or continued as Term SOFR Loans or Alternative Currency Term Rate Loans and (ii) unless repaid, each Term SOFR Loan or Alternative Currency Term Rate Loan shall be converted to a Base Rate Loan
at the end of the Interest Period applicable thereto.
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(d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the
interest rate applicable to any Interest Period for Term SOFR Loans and Alternative Currency Term Rate Loans upon determination of such interest rate. The determination of any such rate by the Administrative Agent shall be conclusive in the absence
of manifest error.
(e) Anything in clauses (a) to (d) above to the contrary notwithstanding, after giving effect
to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect at any
time for all Borrowings of Term SOFR Loans and Alternative Currency Term Rate Loans.
(f) Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing, or, in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m., New York City time, on the date of such Borrowing, that such Lender will not make available to the
Administrative Agent such Lender’s Applicable Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Applicable Percentage available to the Administrative Agent on the date of such Borrowing in
accordance with clause (b) above, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If the Administrative Agent shall have so made funds available,
then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and the Borrowers severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Administrative Agent at (a) in the case of the Borrowers, the interest rate applicable at the
time to the Loans comprising such Borrowing and (b) in the case of such Lender, the greater of (x) the Federal Funds Rate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in accordance with the foregoing. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing
under this
Section
2.022.02
(f) shall be conclusive in the absence of demonstrable error. If the Borrowers and such Lender shall both pay all or any portion of the principal amount in respect of such Borrowing or interest
to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such Borrowing or interest paid by the Borrowers for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a
Lender that shall have failed to make such payment to the Administrative Agent.
(g) If the maturity date shall have occurred in
respect of any Class of Revolving Credit Commitments at a time when another Class or Classes of Revolving Credit Commitments is or are in effect with a longer maturity date, then on the earliest occurring maturity date all then-outstanding Revolving
Credit Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Revolving Credit Loans as a result of the occurrence of such maturity date); provided, however, that if on the
occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Credit Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.03(k) or of Swing Line Loans as contemplated
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in Section 2.04(g)), there shall exist sufficient unutilized Extended Revolving Credit Commitments so that the respective outstanding Revolving Credit Loans could be incurred pursuant
the Extended Revolving Credit Commitments which will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Revolving Credit Loans and same shall be deemed
to have been incurred solely pursuant to the relevant Extended Revolving Credit Commitments, and such Revolving Credit Loans shall not be so required to be repaid in full on such earliest maturity date.
(h) With respect to SOFR, Term SOFR, any Alternative Currency Daily Rate or Alternative Currency Term Rate, the Administrative Agent will have
the right to make Conforming Changes in good faith (in consultation with the Parent Borrower) from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes
will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided, that, with respect to any such amendment effected, the Administrative Agent shall post each such
amendment implementing such Conforming Changes to the Borrowers and the Lenders reasonably promptly after such amendment becomes effective.
Section 2.03. Letters of
Credit..
(a) The Letter of Credit Commitments.
(i) Subject to the terms and conditions set forth herein, (1) each L/C Issuer agrees, in reliance upon the agreements of
the other Revolving Credit Lenders set forth in this Section 2.03, (x) 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 in Dollars
or in one or more Alternative Currencies for the account of the Borrowers (provided that any Letter of Credit may be for the benefit of any Restricted Subsidiary of the Parent Borrower) and to amend or renew Letters of Credit previously
issued by it, in accordance with Section 2.03(b), and
(y) to honor drafts under the Letters of Credit and (2) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued pursuant to this Section 2.03; provided that 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 after giving effect to such L/C Credit Extension, if (x) the Revolving Credit Exposure
of any Lender would exceed such Lender’s Revolving Credit Commitment, or (y) the Outstanding Amount of the L/C Obligations would exceed the Letter of Credit Sublimit; provided, further, that each L/C Issuer shall have
a Commitment herein proportionate to its Revolving Credit Commitment and no L/C Issuer shall be obligated to issue, amend or renew any Letter of Credit if the Outstanding Amount of Letters of Credit issued by such L/C Issuer, when aggregated with
the Outstanding Amount of Swing Line Loans made by such L/C Issuer and the Revolving Credit Exposure of such L/C Issuer (other than Revolving Credit Exposure attributable to Letters of Credit and Swing Line Loans issued and made by such L/C Issuer)
would exceed the L/C Issuer’s Revolving Credit Commitment. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrowers 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. It is hereby acknowledged and agreed that (x) each of the letters of credit described in Schedule 2.03(a)(i) (the “Existing Letters of Credit”) and (y) each of the Existing Apria Letters of Credit,
shall constitute a “Letter of Credit” for all purposes of this
Agreement
(the “Existing Letters of Credit”).
Notwithstanding anything to the contrary contained in this Agreement, no L/C Issuer shall be required to issue commercial or trade Letters of Credit without its consent.
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(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), the expiry date of such requested Letter of
Credit would occur more than twelve months after the date of issuance or last renewal, unless (i) the Required Revolving Credit Lenders and (ii) the relevant L/C Issuer have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless
(i) all the Revolving Credit Lenders and (ii) the relevant L/C Issuer have approved such expiry date, except to the extent such Letter of Credit is Cash Collateralized in accordance with Section 2.03(f) or otherwise backstopped pursuant to arrangement
reasonably satisfactory to the relevant L/C Issuer;
(D) the issuance of such Letter of Credit would violate any
Laws binding upon such L/C Issuer or one or more policies of the L/C Issuer applicable to letters of credit generally;
(E)
the Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency, unless otherwise agreed by the L/C Issuer and the Administrative Agent;
(F) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the
requested currency; or
(G) any Lender is at that time a Defaulting Lender, unless after giving effect to the requested
issuance the requirements of Section 2.16(e) have been satisfied.
(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.
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(b) Procedures for Issuance and Amendment of Letters of Credit; Auto Renewal Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrowers
delivered to an L/C Issuer (with a copy to the Administrative Agent, along with a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the applicable Borrower, relating to such Letter of Credit) in the form
of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Parent Borrower. Such Letter of Credit Application must be received by the relevant L/C Issuer and the Administrative Agent not later than 1:00
p.m. at least three (3) Business Days prior to the proposed issuance date or date of amendment, as the case may be; or, in each case, such later 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 Application 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 and currency thereof; (c) the expiry date thereof; (d) the name and address of the beneficiary thereof; (e) the documents to be presented by such beneficiary in
case of any drawing thereunder; (f) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (g) 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 Application 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.
(ii) Promptly after receipt of any Letter of Credit Application, the relevant L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing (including by email or facsimile transmission)) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrowers and, if not, such L/C Issuer will provide the Administrative
Agent with a copy thereof. Unless the relevant L/C Issuer has received written notice from the Administrative Agent, any Revolving Credit Lender or any Loan Party, at least one (1) Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not have been satisfied, 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 Borrowers (and, if requested, on behalf of a 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, acquire from the relevant L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s Applicable Percentage
times the amount of such Letter of Credit.
(iii) If the Borrowers so request in any applicable Letter of Credit
Application, the relevant L/C Issuer shall agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit
the relevant L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Nonrenewal Notice Date”) in each such twelve-month period to be agreed upon at the
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time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the Borrowers shall not be required to make a specific request to the relevant L/C Issuer for any such
renewal. Once an Auto-Renewal 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 renewal 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 renewal 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 renewed 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, followed promptly in writing, or in writing (including by email or facsimile transmission) on or before the day that is five
(5) Business Days before the Nonrenewal Notice Date from the Administrative Agent or any Revolving Credit Lender, as applicable, or the Borrowers that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an
advising bank with respect thereto or to the beneficiary thereof, the relevant L/C Issuer will also deliver to the Borrowers 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 Borrowers and the Administrative Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrowers shall reimburse the relevant L/C Issuer in such Alternative
Currency, unless (A) the relevant L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrowers shall
have notified the relevant L/C Issuer promptly following receipt of the notice of drawing that the Borrowers will reimburse the relevant L/C Issuer in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit
denominated in an Alternative Currency, the relevant L/C Issuer shall notify the Borrowers of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. On the Business Day immediately following the Business Day
on which the Borrowers shall have received notice of any payment by an L/C Issuer under a Letter of Credit (or, if the Borrowers shall have received such notice later than 1:00 p.m. (or the Applicable Time in the case of any payment by the relevant
L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency) on any Business Day, on the second succeeding Business Day) (each such date, an “Honor Date”), the Borrowers shall reimburse such L/C Issuer through
the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency by 1:00 p.m. (or the Applicable Time in the case of any payment by the relevant L/C Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency) on such Business Day. If the Borrowers fail 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 in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Appropriate Lender’s
Applicable Percentage thereof. In such event, the Borrowers shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be
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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 but subject to the amount of the unutilized portion of the Revolving Credit Commitments of the Appropriate Lenders, and subject to the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice);
provided that any drawing under a Letter of Credit that is not reimbursed on the date of drawing shall accrue interest from the date of drawing at the rate applicable to Revolving Credit Loans that are Base Rate Loans subject to the
provisions set forth below. 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 (including by email or facsimile transmission); provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender (including any such 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 Applicable Percentage of any Unreimbursed Amount in respect of a Letter of Credit not later
than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.04(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the relevant L/C Issuer.
(iii) With respect to any Unreimbursed Amount in respect of a Letter of Credit that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrowers 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 at the Default Rate. In such event, each Revolving Credit 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 Revolving Credit 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 Applicable Percentage 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 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 Borrowers 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 (but not L/C Advances) pursuant to this Section
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2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrowers of a Committed Loan Notice). No such making of an L/C Advance shall relieve
or otherwise impair the obligation of the Borrowers 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 the Federal Funds Rate, or if the Federal Funds Rate is not available, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or L/C
Advance in respect of the relevant L/C Borrowing, as the case may be. 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 demonstrable error.
(vii) 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 this 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 Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to each Revolving Credit Lender its Applicable Percentage thereof (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.
(viii) 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 Revolving Credit
Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage 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 Federal Funds Rate, or if the Federal Funds Rate is not available, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
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(d) Obligations Absolute. The obligation of the Borrowers 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 nonperfection 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 the relevant Alternative Currency to the
Parent Borrower or any of its Subsidiaries or in the relevant currency markets generally; or
(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 Borrowers to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are waived by the Borrowers to the extent permitted by applicable Law) suffered by the Borrowers that are caused by such L/C Issuer’s gross negligence or willful misconduct (as determined by a
court of competent jurisdiction in a final non-appealable judgment) when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
(e) Role of L/C Issuers. Each Lender and the Borrowers 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
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herewith at the request or with the approval of the Lenders or the Required Revolving Credit Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a final non-appealable judgment); or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrowers hereby assume 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 Borrowers’ pursuing such rights and remedies as they 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 (iii) of this
Section 2.03(e); provided that anything in such
clauses to the contrary notwithstanding, the Borrowers may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrowers caused by such L/C Issuer’s willful misconduct or gross negligence 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 by the final and non-appealable judgment of a court of competent jurisdiction). 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.
(f) Cash Collateral. (i) If any Event of Default occurs and is continuing and
the Administrative Agent, the Required Lenders, or the Required Revolving Credit Lenders, as applicable, require the Borrowers to Cash Collateralize the L/C Obligations pursuant to Section 8.02(c) or (ii) an Event of Default set
forth under Section 8.01(f) or (g) occurs and is continuing, then the Borrowers 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), and shall do so not later than 2:00 p.m. on (x) in the case of the immediately preceding clause (i), (1) the Business Day that the Borrowers receive notice thereof, if such notice is received on
such day prior to 1:00 p.m., or (2) if clause (1) above does not apply, the Business Day immediately following the day that the Borrowers receive such notice and (y) in the case of the immediately preceding clause (ii),
the Business Day on which an Event of Default set forth under Section 8.01(f) or (g) occurs or, if such day is not a Business Day, the Business Day immediately succeeding such day, in either case, by 1:00 p.m. on such
day. 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 Revolving Credit Lenders, as collateral for the L/C
Obligations, cash or deposit account balances in an amount equal to the then Outstanding Amount of all L/C Obligations (determined as of the date of such Event of Default), (“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 Revolving Credit Lenders). Derivatives of such term have corresponding meanings. The Borrowers hereby grant to
the Administrative Agent, for the benefit of the Secured Parties, 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 accounts satisfactory to the
Administrative Agent in the name of the Administrative Agent and for the benefit of the Secured Parties and may be invested in readily available Cash Equivalents at its sole discretion. If at any time the Administrative Agent
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determines that any funds held as Cash Collateral are 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 Borrowers will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the deposit
accounts satisfactory to the Administrative Agent as aforesaid, 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 plus costs incidental thereto and so long as no other Event of Default has occurred and is
continuing, the excess shall be refunded to the Borrowers. If such Event of Default is cured or waived and no other Event of Default is then occurring and continuing, the amount of any Cash Collateral and accrued interest thereon shall be refunded
to the Borrowers.
(g) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for the account of each Revolving
Credit Lender in accordance with its Applicable Percentage a Letter of Credit fee (a “Letter of Credit
Fee”) for each Letter of Credit issued pursuant to this Agreement equal to the product of (i) Applicable Rate for Letter of Credit feesFees and (ii) the Dollar Equivalent of the daily maximum amount then available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Such letter of credit feesLetter of Credit Fees shall be computed on a quarterly basis in arrears.
Such letter of credit
feesLetter of Credit Fees shall be due and payable
on the first Business Day after the end 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 the Applicable Rate during any quarter, the daily maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.
(h) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrowers shall pay directly to
each L/C Issuer for its own account a fronting fee (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 daily maximum amount then available to be
drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Such fronting fees
shall be computed on a quarterly basis in arrears. Such fronting fees shall be due and payable ten (10) Business Days following 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 Borrowers shall pay directly to each L/C Issuer for its own account 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.
(i) Conflict with Letter of Credit Application. Notwithstanding anything else to the contrary in any Letter of
Credit Application, in the event of any conflict between the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.
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(j) Addition of an L/C Issuer. A Revolving Credit Lender (or any of its Subsidiaries
or affiliates) may become an additional L/C Issuer hereunder pursuant to a written agreement among the Borrowers, the Administrative Agent and such Revolving Credit Lender, which such written agreement shall also provide that the commitment of such
additional L/C Issuer to issue Letters of Credit shall not exceed at any time the amount set forth in such written agreement. The Administrative Agent shall notify the Revolving Credit Lenders of any such additional L/C Issuer.
(k) Provisions Related to Extended Revolving Credit Commitments. If the maturity date in respect of any Class of Revolving Credit
Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other Classes of Revolving Credit Commitments in respect of which the maturity date shall not have occurred are then in effect, such Letters of Credit
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 Section 2.03(c)) under (and ratably participated in by Lenders
pursuant to) the Revolving Credit Commitments in respect of such non-terminating Classes up to an aggregate amount not to exceed the aggregate principal 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 Borrowers shall Cash Collateralize any such Letter of Credit
in accordance with Section 2.03(f). If, for any reason, such Cash Collateral is not provided or the reallocation does not occur, the Revolving Credit Lenders under the maturing Class shall continue to be responsible for their
participating interests in the Letters of Credit. Except to the extent of reallocations of participations pursuant to clause (i) of the second preceding sentence, the occurrence of a maturity date with respect to a given Class of
Revolving Credit Commitments shall have no effect upon (and shall not diminish) the percentage participations of the Revolving Credit Lenders in any Letter of Credit issued before such maturity date. Commencing with the maturity date of any Class of
Revolving Credit Commitments, the sublimit for Letters of Credit shall be agreed with the Lenders under the extended Classes. For the avoidance of doubt, notwithstanding anything contained herein, the commitment of any L/C Issuer to act in its
capacity as such cannot be extended beyond the Maturity Date for the Amendment No. 4 Revolving Credit Facility (as such Maturity Date is in effect at the Closing Date) or increased without its prior written consent.
(l) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and the Borrowers when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit and (ii) the rules of the UCP shall apply to each commercial Letter of Credit.
Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrowers for, and the L/C Issuer’s rights and remedies against the Borrowers shall not be impaired by, any action or inaction of the 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 Law or any order of a jurisdiction where the 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 ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association
(BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(m) 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 Subsidiary, the Borrowers shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrowers hereby acknowledge that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrowers, and that the Borrowers’ business derives substantial benefits from the businesses of such Subsidiaries.
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Section 2.04. Swing Line Loans. .
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in its sole discretion, to make loans denominated in Dollars (each such loan, a “Swing Line Loan”) to the Borrowers from time to time on any Business Day (other than the Closing Date) until the Business Day
prior to the Maturity Date with respect to the Amendment No. 4
Revolving Credit Facility in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the Applicable Percentage 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 Lender’s Revolving Credit Commitment; provided that after
giving effect to any Swing Line Loan, the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment then in effect; provided, further, that no Swing Line Lender shall be obligated to make any Swing Line
Loan if the Outstanding Amount of Swing Line Loans made by such Swing Line Lender, when aggregated with the Outstanding Amount of Letter of Credit issued by such Swing Line Lender and the Revolving Credit Exposure of such Swing Line Lender (other
than Revolving Credit Exposure attributable to Swing Line Loans and Letters of Credit made and issued by such Swing Line Lender) would exceed the Swing Line Lender’s Revolving Credit Commitment; provided, further, that
Swing Line Lender shall not be required to make any Swing Line Loan at any time that any Lender is a Defaulting Lender, unless after giving effect to the requested Swing Line Loans the requirements of Section 2.16(e) have been satisfied;
provided, further, that the Borrowers 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
Borrowers 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, Daily Simple SOFR Swingline Loan or combination
thereof. 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 Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Parent Borrower’s irrevocable notice to the Swing Line Lender, which may be given by telephone. Each such notice must be received by the Swing Line Lender not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of, (x) in the case of Base Rate Loans, $100,000 (and any amount in excess thereof shall be an integral multiple of
$100,000) and (y) in the case of Daily Simple SOFR Swingline Loans, $100,000 (and any amount in excess thereof shall be in an integral multiple 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 of a written Swing Line Loan Notice (including by email or facsimile transmission), appropriately completed and signed by a Responsible Officer of the Parent Borrower.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing (including by email or facsimile transmission)) that the
Administrative Agent has also
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received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing (including by email or facsimile transmission)) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing (including by email or facsimile transmission)) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(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. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrowers at their office by crediting the accounts of the Borrowers on the books of the Swing Line Lender in Same Day Funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby
irrevocably authorizes the 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 Applicable Percentage 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
Borrowers 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 Applicable Percentage of the amount specified in such
Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office for payments not later than 1:00 p.m. 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, as applicable, to the Borrowers 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, as applicable,
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 such 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 the Federal Funds Rate,
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or if the Federal Funds Rate is not available, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit
Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. 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 demonstrable 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 Borrowers 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 (but
not to purchase and fund risk participations in Swing Line Loans) pursuant to this Section 2.04(c) 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 Borrowers 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 Applicable Percentage 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 Applicable Percentage 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 Federal Funds Rate, or if the
Federal Funds Rate is not available, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The
obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on
the Swing Line Loans. Until each Revolving Credit Lender funds its Base Rate Loan, as applicable, or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest
in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
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(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
(g) Provisions Related to Extended
Revolving Credit Commitments. If the maturity date shall have occurred in respect of any Class of Revolving Credit Commitments at a time when another Class or Classes of Revolving Credit Commitments is or are in effect with a longer maturity
date, then on the earliest occurring maturity date all then-outstanding Swing Line Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swing Line Loans as a result of the occurrence of such
maturity date); provided, however, that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Credit Loans and any reallocation of Letter of Credit participations as contemplated
in Section 2.03(k)), there shall exist sufficient unutilized Extended Revolving Credit Commitments so that the respective outstanding Swing Line Loans could be incurred pursuant the Extended Revolving Credit Commitments which will remain
in effect after the occurrence of such maturity date, then if consented to by the Swing Line Lender, there shall be an automatic adjustment on such date of the participations in such Swing Line Loans and same shall be deemed to have been incurred
solely pursuant to the relevant Extended Revolving Credit Commitments, and such Swing Line Loans shall not be so required to be repaid in full on such earliest maturity date. For the avoidance of doubt, the commitment of the Swing Line Lender to act
in its capacity as such cannot be extended beyond the Maturity Date for the Amendment No. 4 Revolving Credit Facility (as such Maturity Date is in effect at the Closing Date) or increased without its prior written consent.
Section 2.05. Prepayments.
.
(a) Optional Prepayments. (i) The Borrowers may, upon notice to the Administrative Agent by the Parent Borrower, at any time or
from time to time voluntarily prepay any Borrowing of any Class in whole or in part without premium or penalty; provided that (1) such notice must be received by the Administrative Agent not later than 1:00 p.m., New York City time
(A) two (2) Business Days prior to any date of prepayment of Term SOFR Loans denominated in Dollars, (B) three Business Days (or four, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of
prepayment of any Alternative Currency Loans, and (C) on the date of prepayment of any Base Rate Loan (excluding Base Rate Loans that are Swing Line Loans), (2) any prepayment of Term SOFR Loans or Alternative Currency Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding and (3) any prepayment of Base Rate Loans (excluding Base Rate Loans that are Swing Line
Loans) shall be in a principal amount of $100,000 or a whole multiple of $100,000 in excess thereof or, in each case, 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 Applicable Percentage of such prepayment. If such notice
is given by the Borrowers, the Borrowers 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 any Loan shall be accompanied by all accrued interest
thereon, together with any additional amounts required pursuant to Section 3.04. Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied to the installments thereof as directed by the Borrowers and
shall be paid to the Appropriate Lenders in accordance with their respective Applicable Percentages.
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(ii) The Borrowers may, upon 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. on the date of the prepayment, and (2) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple of $100,000 in excess thereof or, 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 Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.
(iii) Notwithstanding anything to the contrary contained in this Agreement, the
Borrowers may rescind any notice of prepayment under Section 2.05(a) if such prepayment would have resulted from a refinancing of all of the
Amendment No. 4 Revolving Credit Facility, which
refinancing shall not be consummated or shall otherwise be delayed.
(b) Mandatory Prepayments.
(i)
[Reserved].
(ii) (A) Subject to the Reinvestment Period, if following the Amendment No. 4 Effective Date, the Parent Borrower
or any Restricted Subsidiary Disposes of any property or assets pursuant to Section 7.05(l), and, if in an aggregate amount in excess of $35,000,000, Section 7.05(s), which in the aggregate results in the realization or receipt by the
Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrowers shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Revolving Credit Loans equal to 100%
(such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to
such portion of such Net Cash Proceeds that the Borrowers shall have, on or prior to such date, given written notice to the Administrative Agent of their intent to reinvest in accordance with the Reinvestment Period or (II) until the aggregate
amount of Net Cash Proceeds not reinvested in accordance with the Reinvestment Period within the time periods set forth therein and not previously applied to such a prepayment exceeds $25,000,000 for any single Disposition or series of related
Dispositions or $50,000,000 in the aggregate during such fiscal year (and thereafter only amounts in excess of such thresholds shall be required to be prepaid) and (2) if at the time that any such prepayment would be required, the Parent
Borrower or any of its Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with the Liens securing the Revolving Credit Loans pursuant to the terms of the
documentation governing such Indebtedness (including, for the avoidance of doubt, the 2026 First Lien Indenture and the Term Loan Credit Agreement) (such Indebtedness required to be offered to be so repurchased or prepaid, “Other Applicable
Indebtedness”), then the Parent Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding Revolving Credit Commitments and outstanding principal amount of Other Applicable
Indebtedness at such time) to the prepayment of the Revolving Credit Loans, and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Revolving Credit Loans that would have otherwise been required
pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly by the amount offered to repurchase or prepay Other Applicable Indebtedness (provided that the portion of such Net Cash Proceeds allocated to be offered to the Other
Applicable Indebtedness shall not exceed the amount of such Net Cash
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Proceeds required to be allocated to the Other Applicable
Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Revolving Credit Loans in accordance with the terms hereof); provided, further that the Asset Percentage
shall be reduced to (i) 50% if the First Lien Leverage Ratio for the most recently ended Test Period on a Pro Forma Basis is greater than or equal to 2.50:1.00 but less than 3.00:1.00 or (ii) 0% if the First Lien Leverage Ratio for the
most recently ended Test Period on a Pro Forma Basis is less than 2.50:1.00; provided, further that any reduction in revolving commitments (whether or not coupled with a mandatory prepayment) shall be deemed a prepayment (or an amount
offered to repurchase or prepay) for purposes of this Section 2.05(b)(ii)(A).
(B)
With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than any Disposition specifically excluded from the application of Section 2.05(b)(ii)(A)), at the option of the Parent Borrower, the applicable
Borrower or any Restricted Subsidiary may reinvest an amount equal to all or any portion of such Net Cash Proceeds in assets useful for its business (other than working capital, except for short-term capital assets but including Permitted
Acquisitions and Capital Expenditures) within (x) three hundred sixty (360) days following receipt of such Net Cash Proceeds or (y) if the Parent Borrower or any Restricted Subsidiary enters into a commitment to reinvest such Net Cash
Proceeds (such period, the “Reinvestment Period”) within three hundred sixty (360) days following receipt thereof, one hundred eighty (180) days after the three hundred sixty (360) days period that follows receipt
of such Net Cash Proceeds; provided that if any Net Cash Proceeds are not so reinvested by the deadline specified in clause (x) or (y) above, as applicable, or if any such Net Cash Proceeds are no longer intended to be or cannot be
so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to the Asset Percentage of any such Net Cash Proceeds shall be applied, in accordance with Section 2.05(b)(ii)(C), to the prepayment or commitment
reduction of the Revolving Credit Loans or the Revolving Credit Commitments, as applicable, as set forth in this Section 2.05.
(C)
On each occasion that the Borrowers must make a prepayment or commitment reduction of the Revolving Credit Loans or the Revolving Credit Commitments, as applicable, pursuant to this Section 2.05(b)(ii), the Borrowers shall, within five
(5) Business Days after the date of realization or receipt of such Net Cash Proceeds in the minimum amount specified above (for the avoidance of doubt, subject to the applicable deductions or reductions set forth above) (or, in the case of
prepayments or commitment reductions required pursuant to Section 2.05(b)(ii)(B), within five (5) Business Days of the deadline specified in clause (x) or (y) thereof, as applicable, or of the date the Borrowers reasonably
determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested, as the case may be), make a prepayment or a commitment reduction, in accordance with Section 2.05(b)(v) below, of the principal amount of Revolving
Credit Loans or the Revolving Credit Commitments, as applicable, in an amount equal to the Asset Percentage of such Net Cash Proceeds (for the avoidance of doubt, subject to the applicable deductions or reductions set forth above) realized or
received.
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(iii)
If, following the Amendment No. 4 Effective Date, the Parent Borrower or any Restricted Subsidiary incurs or issues any Qualified Acquisition Securitization Financing outstanding pursuant to Section 7.01(f) (to the extent the amount of
all Qualified Securitization Transactions then outstanding exceeds $200,000,000), the Borrowers shall terminate Revolving Credit Commitments under the Amendment No. 4 Revolving Credit Facility in the amount by which the amount of Qualified
Securitization Transactions then outstanding exceeds $200,000,000 on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iv)
[Reserved].
(v) The Borrowers shall notify the Administrative Agent in writing of any mandatory prepayment or commitment reduction of
Revolving Credit Loans or the Revolving Credit Commitments, as applicable, required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.05(b) prior to 1:00 p.m. at least five (5) Business Days (or such lesser
number of Business Days as shall be acceptable to the Administrative Agent) prior to the date of such prepayment or commitment reduction. Each such notice shall specify the date of such prepayment or commitment reduction and provide a reasonably
detailed calculation of the amount of such prepayment or commitment reduction. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrowers’ prepayment notice or commitment reduction notice and of such
Appropriate Lender’s Applicable Percentage of the prepayment or commitment reduction. Each Appropriate Lender may reject all, but not less than all, of its Applicable Percentage of any mandatory prepayment (such declined amounts, the
“Declined Proceeds”) of Revolving Credit Loans, required to be made pursuant to clauses (i) or (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the
Administrative Agent and the Borrowers no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given
Lender shall specify the principal amount of the Declined Proceeds. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of
the Revolving Credit Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment or commitment reduction of Revolving Credit Loans. Any Declined Proceeds shall be retained by the
Borrowers.
(vi) [Reserved].
(vii)
Notwithstanding any other provision of this Section 2.05(b), (i) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Restricted Subsidiary that is a Foreign Subsidiary otherwise giving rise to a prepayment or
commitment reduction pursuant to Section 2.05(b)(ii) (a “Restricted Disposition”) would be prohibited or delayed by applicable local law from being distributed or otherwise transferred to the Borrowers, the realization or
receipt of the portion of such Net Cash Proceeds so affected will not be taken into account in measuring the Borrowers’ obligation to repay Revolving Credit Loans or reduce the Revolving Credit Commitments at the times provided in
Section 2.05(b)(i), or the Borrowers shall not be required to make a prepayment or commitment reduction at the time provided in Section 2.05(b)(ii), as the case may be, for so long, but only so long, as the applicable local law will not
permit such distribution or transfer (the Parent Borrower hereby agreeing to cause the applicable Restricted Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to
permit
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such repatriation), and once distribution or transfer of any of
such affected Net Cash Proceeds is permitted under the applicable local law, the amount of such Net Cash Proceeds permitted to be distributed or transferred (net of additional taxes payable or reserved against as a result thereof) will be promptly
(and in any event not later than two (2) Business Days after such distribution or transfer is permitted) taken into account in measuring the Borrowers’ obligation to repay the Revolving Credit Loans or reduce the Revolving Credit
Commitments pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that the Parent Borrower has determined in good faith (as set forth in a written notice delivered to the Administrative Agent) that
repatriation of any or all of the Net Cash Proceeds of any Restricted Disposition attributable to a Foreign Subsidiary would have a material adverse tax consequence (taking into account any foreign tax credit or benefit received in connection with
such repatriation), the amount of the Net Cash Proceeds so affected shall not be taken into account in measuring the Borrowers’ obligation to repay Revolving Credit Loans or reduce the Revolving Credit Commitments pursuant to this
Section 2.05(b).
(viii) Notwithstanding any other provision of this Section 2.05(b), (w) in lieu of making any payment pursuant to
Section 2.05(b)(ii), the Borrowers may reduce the Revolving Credit Commitments pursuant to Section 2.06(a) which shall be deemed to be a prepayment (or an amount offered to repurchase or prepay) of the Revolving Credit Loans on a
dollar-for-dollar basis for purposes of Section 2.05(b)(ii)(A) (whether or not coupled with a prepayment), (x) pending the final application of the Net Cash Proceeds of any Disposition, the Parent Borrower, the applicable Borrower or any
Restricted Subsidiary may apply such Net Cash Proceeds temporarily to reduce Indebtedness or otherwise apply such Net Cash Proceeds in any manner not prohibited by this Agreement, (y) the Parent Borrower, the applicable Borrower or any
Restricted Subsidiary may, as the case may be, elect to reinvest in assets useful for its business (other than working capital, except for short-term capital assets but including Permitted Acquisitions and Capital Expenditures) prior to receiving
the Net Cash Proceeds attributable to any given Disposition and deem the amount so reinvested to be applied pursuant to and in accordance with Section 2.05(b)(ii)(B) with respect to such Disposition and (z) the Waived Proceeds may be
retained by the Borrowers and are not required to be applied to prepay Indebtedness pursuant to this Section 2.05(b) and shall not require a cancellation of the Revolving Credit Commitments, as applicable.
(ix)
(b) Mandatory Prepayments. If at any time
the Administrative Agent notifies the Parent Borrower that the Outstanding Amount at such time exceeds an amount equal to 105% of the Aggregate Revolving Committed Amount, then in any such instance, the Borrowers shall within one (1) Business
Day make payment on the Loans and/or to a cash collateral account in respect of L/C Obligations in an amount sufficient to eliminate the difference.
(x)
(A) If following the Amendment No. 4 Effective Date the Parent Borrower or any Restricted Subsidiary Disposes of any
property or assets pursuant to Section 7.05(l), which in the aggregate results in the realization or receipt by the Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds in excess of $50,000,000 from a single Disposition, the
Borrowers shall make a prepayment, in accordance with Section 2.05(b)(x)(B), in an amount equal to an
aggregate principal amount of Revolving Credit Loans equal to 100% of all such Net Cash Proceeds realized or
received in excess of $50,000,000.
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(B)
The Borrowers shall notify the Administrative Agent in writing of any mandatory prepayment of Revolving Credit Loans required to be made pursuant to clause (x)(A) of this Section 2.05(b) prior to 1:00 p.m. at least three (3) Business Days
(or such lesser number of Business Days as shall be acceptable to the Administrative Agent) 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.
(C) For the avoidance of doubt, no payment made as required by Section 2.05(b)(x)(A) shall result in any reduction of
Revolving Credit Commitments and any amounts prepaid may be reborrowed, subject to the terms and conditions hereof.
(c) Interest, Funding Losses, Etc. All prepayments under this Section 2.05 shall be accompanied by all accrued interest
thereon, together with, in the case of any such prepayment of a Term SOFR Loan or Alternative Currency Term Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Loan pursuant to
Section 3.04.
Notwithstanding any of the other provisions of this Section 2.05, so long as no Event of Default
shall have occurred and be continuing, if any prepayment of Term SOFR Loans or Alternative Currency Term Rate Loans is required to be made under this Section 2.05, prior to the last day of the Interest Period therefor, in lieu of making
any payment pursuant to this Section 2.05 in respect of any such Loans prior to the last day of the Interest Period therefor, the Borrowers may, in their sole discretion, deposit with the Administrative Agent the amount of any such
prepayment otherwise required to be made hereunder 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 Borrowers or any other Loan Party) to
apply such amount to the prepayment of such Loans in accordance with this Section 2.05. Such deposit shall constitute cash collateral for the Term SOFR Loans or Alternative Currency Term Rate Loans to be so prepaid, provided that
the Borrowers may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 2.05.
Section 2.06. Termination or Reduction of
Commitments.
.
(a) Optional. The Borrowers 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; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof; provided that this clause (ii) shall not apply in respect of any termination or reduction made pursuant
to Section 2.05(b)(viii)(w), (iii) the Borrowers shall not terminate or reduce the Revolving Credit Commitments of any Class if, after giving effect thereto and to any concurrent
prepayments hereunder, the aggregate Outstanding Amount of such Class would exceed the aggregate Revolving Credit Commitments of such Class and (iv) 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 Amendment No. 4 Revolving Credit Facility, such sublimit shall be automatically reduced by the amount of such excess. The amount of any such Commitment
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reduction shall not be applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrowers. Notwithstanding the foregoing, the Borrowers may rescind or
postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of all of the
Amendment No. 4 Revolving Credit Facility, which refinancing
shall not be consummated or otherwise shall be delayed.
(b)
Mandatory.
(i) (b) Mandatory. The Revolving Credit Commitments (other than any Extended Revolving Credit Commitments) shall
terminate on the applicable Maturity Date. The Extended Revolving Credit Commitments shall terminate on the respective maturity dates applicable
thereto. The amount of any such Commitment reduction shall not be applied to the Letter of Credit Sublimit or
the Swing Line Sublimit unless otherwise specified by the Borrowers. Notwithstanding the foregoing, the Borrowers may rescind or postpone any notice of termination of the Commitments if such termination would have resulted from a refinancing of all
of the Amendment No. 4 Revolving Credit Facility, which refinancing shall not be consummated or otherwise shall be delayed.
(ii)
Solely in respect of a mandatory prepayment of Revolving Credit Loans made by the Borrowers pursuant to Section 2.05(b)(ii), the Revolving Credit Commitments of such Class shall be permanently reduced in an amount equal to such mandatory
prepayment. The amount of any such Commitment reduction shall not be applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrowers.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination
or reduction of unused Commitments of any Class under this Section 2.06. Upon any reduction of unused portions of the Letter of Credit Sublimit, or the Swing Line Sublimit or the unused Commitments of any Class, the Commitment of each
Lender of such Class shall be reduced by such Lender’s Applicable Percentage of the amount by which such Commitments are reduced (other than the termination of the Commitment of any Lender as provided in Section 3.06). All
Commitment Fees accrued until the effective date of any termination of the Revolving Credit Commitments shall be paid on the effective date of such termination.
Section 2.07. Repayment of Loans.
.
(a) [Reserved].
(b) Revolving
Credit Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders on the Maturity Date for the
Amendment No. 4 Revolving Credit Facility the aggregate
principal amount of all of its Revolving Credit Loans outstanding on such date.
(c) Swing Line Loans. The Borrowers shall
repay each Swing Line Loan in full no later than
ninetythirty
(9030
) days after such
loanSwing Line
Loan is made.
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Section 2.08. Interest. .
(a) Subject to the provisions of Section 2.08(b), (i) each Term SOFR Loan shall bear interest
on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to Term SOFR for such Interest Period plus the Applicable Rate; (ii) each Alternative Currency Daily Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Alternative Currency Daily Rate plus the Applicable Rate; (iii) each Alternative Currency Term Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to the Alternative Currency Term Rate for such Interest Period plus the Applicable Rate; (iv) each Base Rate 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 (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 (i) the Base Rate plus the relevant Applicable Rate for Revolving Credit Loans that are Base Rate Loans or (ii) Daily Simple SOFR plus the relevant Applicable Rate for Daily Simple SOFR Swingline
Loans.
(b) The Borrowers shall pay interest on past due amounts under this Agreement at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand to the fullest extent permitted by
and subject to applicable Laws, including in relation to any required additional agreements.
(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. FeesFees
. In addition to certain fees described in Sections 2.03(g) and (h):
(a)
Commitment Fee. The Borrowers shall pay to the Administrative Agent for the account of each (i) Revolving Credit Lender in accordance with is Applicable Percentage a commitment fee (the “Commitment Fee”) at the
Applicable Rate in effect from time to time on the actual daily amount by which the aggregate Revolving Credit Commitments exceeds the sum of (A) the Outstanding Amount of Revolving Credit Loans and (B) the Outstanding Amount of L/C
Obligations. The Commitment Fee shall accrue at all times from the Closing Date until the Maturity Date for the
Amendment No. 4 Revolving Credit Facility, 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 to occur
after the Closing Date, and on the Maturity Date for the Amendment No. 4 Revolving Credit Facility. The Commitment Fee shall be calculated quarterly in arrears.
(b)
Other Fees. The Borrowers 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 Borrowers and the applicable Agent).
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Section 2.10. Computation of Interest and Fees. All computations of interest for
Base Rate Loans when the Base Rate is determined by the “prime rate” and Alternative Currency 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 the case
may be, and actual days elapsed, or, in the case of interest in respect of Alternative Currency Loans as to which market practice differs from the foregoing, in accordance with such market practice. All other computations of fees and interest,
including those with respect to Term SOFR Loans, 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 such Loan is made, and shall not accrue on such
Loan, or any portion thereof, for the day on which such Loan or such portion is paid; provided that any such 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. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by one or more entries in the Register. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers 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, the Register shall be conclusive in the absence of demonstrable error.
Section 2.12. Payments Generally.
.
(a) All payments to be made by the Borrowers 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 principal of and interest on Loans denominated in Euro, all payments by the Borrowers 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 in Dollars and in Same Day Funds not later than 3:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by
the Borrowers hereunder with respect to principal and interest on Loans denominated in Euro 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 Euro and in Same Day Funds not later than 3:00 p.m. London time on the date specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement
be made in the United States. If, for any reason, the Borrowers are prohibited by any Law from making any required payment hereunder in Euro, the Borrowers shall make such payment in Dollars in the Dollar Equivalent of the Euro payment amount. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage (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 3:00 p.m. (or 3:00 p.m. London time in the case of payments in Euro) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(b) If any payment to be made by the Borrowers 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 Term SOFR Loans or Alternative
Currency Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
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(c) Unless the Borrowers 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 Borrowers or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrowers 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 immediately available funds, then:
(i) if the Borrowers failed to make such payment, then the
applicable Lender agrees to pay to the Administrative Agent forthwith on demand the portion of such assumed payment that was made available to such Lender in immediately available 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 immediately available 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, it being understood that 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 Borrowers may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the
amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent
(the “Compensation Period”) 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. 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 forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such
amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. 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 Borrowers 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 Borrowers with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent demonstrable 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 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.
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(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, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lender’s Applicable Percentage 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 each of them; provided that (x) 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, (y) the provisions of this Section 2.13 shall not be construed to apply to any payment made by the Borrowers pursuant to
and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Obligations to any assignee or participant
and (z) the provisions of this Section 2.13 shall not be construed to apply to any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some
but not all Loans or Commitments of that Class or any amendment to the Applicable Rate (or other pricing term, including any fee, discount or premium) and/or any other amendment in respect of Loans or Commitments of Lenders that have
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consented to any such amendment. The Borrowers agree 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 Borrowers in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding in the absence of demonstrable 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) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, by notice to the Administrative
Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the
establishment of one or more new revolving credit commitments (an “Additional Revolving Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”).
Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount
of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental First Lien Amount minus the aggregate principal amount of Incremental Term
Loans and Incremental Equivalent Debt (in each case as defined in the Term Loan Credit Agreement) incurred on or prior to the date of the incurrence of any such Incremental Revolving Commitments in reliance on the Unrestricted Incremental Amount (as
defined in the Term Loan Credit Agreement) plus (ii) the amount of any voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date and voluntary prepayments of other Indebtedness secured on a pari passu basis with the Revolving Credit LoansAmendment No. 4 Effective Date (excluding (A) any reduction of
Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and
(B) voluntary prepayments with the proceeds of
substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Amendment
No. 4 Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Revolving Commitments and Incremental Equivalent Debt so long
as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such
Incremental Revolving Commitments or Incremental Equivalent Debt, as the case may be), the First Lien Leverage Ratio for the most recently ended Test Period does not exceed (x) 2.05:1.00 or (y) if such Incremental Revolving Commitments are
made in connection with a Permitted Acquisition or any other similar Investment not prohibited hereunder, the First Lien Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately prior to the consummation
of such Permitted Acquisition or other similar Investment and the making of such Incremental Revolving Commitments, it being understood and agreed that Incremental Revolving Commitments may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental
First Lien Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount
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of any new Incremental Revolving Commitments and/or any Incremental Equivalent Debt constituting a revolving
credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each Incremental Revolving Commitment shall be in an
integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability
hereunder as set forth above. Each Incremental Revolving Commitment shall be guaranteed by the Guarantors that guarantee the other Obligations hereunder and secured by a Lien on the Collateral securing all of the other Obligations hereunder.
(b) [Reserved].
(c)
Any Incremental Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments,
(ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that (A) in the case of a Revolving Credit
Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled
amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation
applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the
Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments)), (iii) any Incremental
Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is
shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Revolving Credit
Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the Revolving Credit
Commitments to the extent that they apply to periods after the then Latest Maturity Date with respect to the Amendment
No. 4 Revolving Credit Facility or are otherwise added for the benefit of the Revolving Credit Lenders hereunder.
(d) Each notice from the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the
relevant Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Revolving Commitments shall be reasonably satisfactory to the Borrowers and the Administrative
Agent, the L/C Issuer and Swing Line Lender (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement
pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, such Additional Lender, the Administrative Agent and each L/C Issuer and
Swing Line Lender. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment and the L/C Issuer
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and Swing Line Lender. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Revolving Commitments shall
become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to
effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed.
(e) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional
Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and
warranties of each Loan Party set forth in Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all
material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date and (ii) no
Event of Default shall exist, or would result from such issuance of the Incremental Revolving Commitment; provided in the case of Incremental Revolving Commitments the proceeds of which will be used to finance a Limited Condition Transaction,
(1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified
Representations and (Y) Section 4.02(b) shall be limited to Specified Events of Default and (2) governed by laws other than the laws of the United States, only customary “certain funds” conditions for the applicable
jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be satisfied). Upon each increase in the Revolving Credit Commitments under such Amendment No. 4 Revolving Credit Facility pursuant to this
Section 2.14, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each, an
“Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s
participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations
hereunder in Letters of Credit under such Amendment No. 4 Revolving Credit Facility and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Incremental Revolving Lender) under such Amendment No. 4 Revolving Credit Facility will equal the percentage
of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. Additionally, if any Revolving Credit Loans are outstanding under a Amendment No. 4 Revolving Credit Facility at the time any
Incremental Revolving Commitments are established under such Amendment No. 4 Revolving Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Credit Loans
outstanding under such Amendment No. 4 Revolving
Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender under such
Amendment No. 4 Revolving Credit Facility holds its
Applicable Percentage of all Revolving Credit Loans outstanding under such Amendment No. 4 Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment
requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
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(f) Any portion of any Incremental Revolving Commitment incurred other than under the
Incremental Incurrence Test may be reclassified at any time, as the Parent Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if the Parent Borrower meets the applicable ratio under the Incremental Incurrence
Test at such time on a Pro Forma Basis at any time subsequent to the incurrence of such Incremental Revolving Commitment (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not
elected by the Parent Borrower).
Section 2.15. Extensions of Revolving Credit Commitments. .
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”)
made from time to time by the Borrowers to all Lenders of any Class of Revolving Credit Commitments, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Revolving Credit Commitments of the
applicable Class) and on the same terms to each such Lender, the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date
of each such Lender’s Revolving Credit Commitments of the applicable Class and otherwise modify the terms of such Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing
the interest rate or fees payable in respect of such Revolving Credit Commitments (and related outstandings), and which such extensions shall not be subject to any “no default” requirement, pro forma compliance with any leverage ratio or
other financial tests or “most favored nations provisions”) (each, an “Extension,” and each group of Revolving Credit Commitments in each case as so extended, as well as the original Revolving Credit Commitments (in
each case not so extended), and any Extended Revolving Credit Commitments (as defined below) shall constitute a separate Class of Revolving Credit Commitments from the Class of Revolving Credit Commitments from which they were converted and it being
understood that an Extension may be in the form of an increase in the amount of any other outstanding Class of Revolving Credit Commitments otherwise satisfying the criteria set forth below), so long as the following terms are satisfied:
(i) except as to interest rates, fees and final maturity (which shall be determined by the Borrowers and set forth in the relevant Extension Offer), the Revolving Credit Commitment of any Revolving Credit Lender that agrees to an extension with
respect to such Revolving Credit Commitment (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Credit Commitment”), and the related outstandings, shall be a
Revolving Credit Commitment (or related outstandings, as the case may be) with the same terms as the original Class of Revolving Credit Commitments; provided, that at no time shall there be Revolving Credit Commitments hereunder (including
Extended Revolving Credit Commitments and any original Revolving Credit Commitments) which have more than three different maturity dates, (ii) [reserved], (iii) [reserved], (iv) [reserved], (v) [reserved], (vi) if the
aggregate principal amount of the Class of Revolving Credit Commitments in respect of which Revolving Credit Lenders of such Class shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving
Credit Commitments of such Class, as the case may be, offered to be extended by the Borrowers pursuant to such Extension Offer, then the Revolving Credit Loans of such Class of such Revolving Credit Lenders shall be extended ratably up to such
maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Revolving Credit Lenders have accepted such Extension Offer, (vii) all documentation in respect of such Extension
shall be consistent with the foregoing, and (viii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrowers. No Lender shall be obligated to extend its Revolving Credit Commitments unless it so agrees.
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(b) With respect to all Extensions consummated by the Borrowers pursuant to this
Section 2.15, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.05 and (ii) no Extension Offer is required to be in any minimum amount or any minimum
increment, provided that the Borrowers may at their election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant
Extension Offer in the Borrowers’ sole discretion and may be waived by the Borrowers) of Revolving Credit Commitments of any or all applicable Classes be tendered. The Administrative Agent and the Lenders hereby consent to the transactions
contemplated by this Section 2.15 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Credit Commitments on the such terms as may be set forth in the relevant Extension
Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.12 and 2.13) or any other Loan Document that may otherwise prohibit any such Extension or any
other transaction contemplated by this Section 2.15.
(c) No consent of any Lender or the Administrative Agent shall be
required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the
Revolving Credit Commitments, the consent of the L/C Issuer and the Swing Line Lender (which consent shall not be unreasonably withheld or delayed); provided that any Lender that elects not to agree to such Extension (such Lender being, a
“Non-Extending Lender”) may be replaced by the Borrowers pursuant to Section 3.06. All Extended Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the
other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter
into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new Classes in respect of Revolving Credit Commitments so extended and such technical amendments as may be necessary or
appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new Classes, in each case on terms consistent with this Section 2.15. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the Administrative Agent is hereby
directed to amend) any Mortgage that has a maturity date prior to the then Latest Maturity Date so that such maturity date is extended to the then Latest Maturity Date (or such later date as may be advised by local counsel to the Administrative
Agent).
(d) In connection with any Extension, the Borrowers shall provide
the Administrative Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation, regarding
timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting
reasonably to accomplish the purposes of this Section 2.15.
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Section 2.16.
Defaulting LendersDefaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender
is a Defaulting Lender:
(a) The Commitment Fee shall cease to accrue on any of the Revolving Credit Commitments of such Defaulting
Lender pursuant to Section 2.09(a);
(b) the Commitment, Outstanding Amount of Revolving Credit Exposure of such Defaulting
Lender shall not be included in determining whether all Lenders, the Required Lenders or the Required Revolving Credit Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant
to Section 10.01); provided that (x) any waiver, amendment or modification of the type described in clause (a), (b) or (c) of the first proviso in Section 10.01 that would apply to
the Revolving Credit Commitments or Obligations owing to such Defaulting Lender or (y) any waiver, amendment or modification (other than as described in the forgoing clause (x) requiring the consent of all Lenders or each affected
Lender) which affects such Defaulting Lender disproportionally when compared to other affected Lenders, in each case, shall require the consent of such Defaulting Lender with respect to the effectiveness of such waiver, amendment or modification
with respect to the Revolving Credit Commitments or Obligations owing to such Defaulting Lender;
(c) 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 IX 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, as the Borrowers may request (so long as no Default or Event of
Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, to the payment of any amounts owing
to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fourth, so
long as no Default or Event of Default exists, to the payment of any amounts owing to any Loan Party as a result of any judgment of a court of competent jurisdiction obtained by any Loan Party against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal
amount of any Loans, such payment shall be applied solely to pay the relevant Loans of the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this clause (c).
(d) if any Swing Line Obligations or L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swing Line Obligations or L/C Obligations of such Defaulting Lender shall be reallocated among the
non-Defaulting Lenders in accordance with their respective Applicable Percentage but only to the extent that such non-Defaulting Lenders’ Revolving Credit Exposures does not exceed its Revolving Credit Commitments;
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(ii) if the reallocation described in clause (i) above cannot,
or can only partially, be effected, the Borrowers shall within three (3) Business Days following notice by the Administrative Agent (x) first, prepay such Swing Line Obligations and (y) second, Cash Collateralize for the
benefit of the L/C Issuer only the Borrowers’ obligations corresponding to such Defaulting Lender’s L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the
procedures set forth in Section 2.03(f) for so long as such L/C Obligations are outstanding;
(iii) if the
Borrowers Cash Collateralize any portion of such Defaulting Lender’s L/C Obligations pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 2.03(h) with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are Cash Collateralized;
(iv) if the L/C Obligations of the non-Defaulting Lenders are reallocated pursuant to clause (i) above, then the
fees payable to the Lenders pursuant to Sections 2.09(a) and 2.03(h) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentage; and
(v) if all or any portion of such Defaulting Lender’s L/C Obligations is neither reallocated nor Cash Collateralized
pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the L/C Issuer or any other Lender hereunder, all
letter of credit
feesLetter of Credit Fees payable under
Section
2.03(hg
) with respect to such Defaulting Lender’s L/C Obligations shall be payable to the L/C Issuer until and to the extent that such L/C Obligations are reallocated and/or Cash
Collateralized; and
(e) so long as such Lender is a Defaulting Lender, the Swing Line Lender shall not be required to fund any
Swing Line Loan and the L/C Issuer shall not be required to issue, amend or increase any Letter of Credit, unless it has received assurances satisfactory to it that non-Defaulting Lenders will cover the related exposure and/or cash collateral will
be provided by the Borrowers in accordance with
Section 2.16(d), and participating interests in any newly
made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with
Section 2.16(d)(i) (and such Defaulting Lender shall
not participate therein).
In the event that the Administrative Agent, the Borrowers, the Swing Line Lender and the L/C Issuer each
agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Line Obligations and L/C Obligations of the Revolving Credit Lenders shall be readjusted to reflect the inclusion
of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Revolving Credit Loans of the other Revolving Credit Lenders (other than Swing Line Loans) as the Administrative Agent shall determine
may be necessary in order for such Lender to hold such Revolving Credit Loans in accordance with its Applicable Percentage; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf
of the Borrowers while that Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties and subject to Section 10.24, no change hereunder from
Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
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Section 2.17.
[Reserved]. .
Section 2.18. Parent Borrower as Agent. The Borrowers hereby
appoint the Parent Borrower to act as their agent for all purposes under this Agreement (including, without limitation, with respect to all matters related to the borrowing and repayment of Loans) and the other Loan Documents and agree that
(i) the Parent Borrower may execute such documents on behalf of the Borrowers as the Parent Borrower deems appropriate in its sole discretion and the Borrowers shall be obligated by all of the terms of any such document executed on their
behalf, (ii) any notice or communication delivered by the Administrative Agent or any Lender to Parent Borrower shall be deemed delivered to all Borrowers and (iii) the Administrative Agent and the Lenders may accept, and be permitted to
rely on, any document, instrument or agreement executed by the Parent Borrower on behalf of the Borrowers. For the avoidance of doubt, each Borrower shall be jointly and severally liable with the other Borrowers for all Obligations hereunder.
Section 2.19.
Additional
BorrowersAdditional Borrowers. The Parent Borrower may request that any of its Foreign
Subsidiaries (each, an “Applicant Foreign Borrower”) be designated a Foreign Borrower under the
Amendment No. 4 Revolving Credit Facility by delivery
of a written request to the Administrative Agent therefor. The Administrative Agent will promptly notify the Revolving Credit Lenders of any such request. Designation of any Applicant Foreign Borrower as a Foreign Borrower under the Amendment No. 4 Revolving Credit Facility is subject to
(i) delivery of an executed Note by such Applicant Foreign Borrower as may be requested by any Revolving Credit Lender in connection therewith, (ii) delivery of supporting resolutions, articles of incorporation and bylaws (or their
equivalents), incumbency certificates, opinions of counsel and such other items as the Administrative Agent or the Revolving Credit Lenders, as applicable, may request (including all documentation and other information requested in order to comply
with applicable law, including without limitation “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and, to the extent required by 31 C.F.R. § 1010.230, a
certification of the Borrower regarding beneficial ownership), (iii) delivery of an executed Foreign Borrower Joinder Agreement, (iv) consent from each Revolving Credit Lender (such consent not to be unreasonably withheld, conditioned,
delayed or denied) and (v) to the extent deemed necessary by the Administrative Agent and the Parent Borrower execution of an amendment to this Agreement to incorporate country specific and other items reasonably necessary to include such
Applicant Foreign Borrower, such amendment to be reasonably acceptable to the Administrative Agent, the Revolving Credit Lenders and the Borrowers. Each Revolving Credit Lender shall, by notice to the Administrative Agent given not later than the
date that is five (5) Business Days from the date which such Revolving Credit Lender received notice from the Administrative Agent of the Parent Borrower’s request to designate an Applicant Foreign Borrower as a Foreign Borrower, advise
the Administrative Agent whether or not such Revolving Credit Lender consents to such designation pursuant to Section 2.19(iv). Any Revolving Credit Lender that determines not to consent to the designation of such Applicant Foreign
Borrower as a Foreign Borrower shall notify the Administrative Agent of such fact promptly after such determination and any Revolving Credit Lender not responding within such fifteen (15) Business Day period shall be deemed to have determined
not to so consent.
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 by the Borrowers or any Guarantor to or for the account of any
Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any Taxes unless required by applicable Law. If any applicable withholding agent (as determined in the good faith discretion of an applicable
withholding agent) shall be required by any Laws to deduct any Taxes from or in respect of any
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sum payable under any Loan Document to any Agent or any Lender, (i) if such Taxes are Indemnified Taxes, the sum payable by the Borrowers or applicable Guarantor shall be increased as
necessary so that after all required deductions have been made (including deductions 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 been made, (ii) such applicable withholding agent shall make such deductions, (iii)such applicable withholding agent shall pay the full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment by such applicable withholding agent (or, if receipts or evidence are not available within thirty (30) days, as soon as possible
thereafter), such applicable withholding agent shall furnish to Borrowers and such Agent or Lender (as the case may be) the original or a facsimile copy (which may be delivered via email) of a receipt evidencing payment thereof to the extent such a
receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.
(b) The
BorrowerBorrowers
shall timely pay to the relevant Governmental Authority in accordance with Applicableapplicable Law, or at the option of the Administrative Agent timely
reimburse it for the payment of, any Other Taxes.
(c) The Borrowers agree to indemnify each Agent and each Lender for (i) the
full amount of Indemnified Taxes (including any Indemnified Taxes imposed or asserted by any jurisdiction in respect of amounts payable under this Section 3.01) payable by such Agent and such Lender and (ii) any reasonable and
documented out-of-pocket expenses arising therefrom or with respect thereto, in each case whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Such Agent or Lender, as the case
may be, will, at the Borrowers’ request, provide the Borrowers with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts which shall be conclusive absent manifest error. Payment under this Section 3.01(c) shall be made within ten (10) days after the
date such Lender or such Agent makes a demand therefor.
(d) If any Lender or Agent determines, in its reasonable discretion, that
it has received a refund in respect of any Taxes as to which indemnification or additional amounts have been paid to it by the Borrowers or any Guarantor pursuant to this Section 3.01, it shall promptly remit an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrowers or any Guarantor under this Section 3.01 with respect to the Taxes giving rise to such refund to the Borrowers, 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 taxing authority with respect to such refund); provided that the Borrowers, upon the
request of the Lender or Agent, as the case may be, agree promptly to return an amount equal to such refund (plus any applicable interest, additions to tax or penalties) to such party in the event such party is required to repay such refund to the
relevant taxing authority. Nothing herein contained shall interfere with the right of a Lender or Agent to arrange its Tax affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim any Tax refund or to make available its Tax
returns or disclose any information relating to its Tax affairs or any computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or
repayments to which it may be entitled.
(e) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 3.01(a) or (c) with respect to such Lender it will, if requested by the Borrowers, use commercially reasonable efforts (subject to legal and regulatory restrictions), at Borrowers’ expense, to designate another
Applicable Lending Office for any Loan affected by such event;
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provided that such efforts are made on terms that, in the judgment of such Lender, cause such Lender and its Applicable Lending Office(s) to suffer no material economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section 3.01(e) shall affect or postpone any of the Obligations of the Borrowers or the rights of such Lender pursuant to Section 3.01(a) or
(c).
(f) Each Lender shall, at such times as are reasonably requested by the Borrowers or the Administrative Agent, provide the
Borrowers and the Administrative Agent with any documentation prescribed by law, or reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any
withholding Tax with respect to any payments to be made to such Lender under any Loan Document. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any documentation specifically
referenced below) expired, obsolete or inaccurate in any material respect, deliver promptly to the Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the
applicable withholding agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
Without
limiting the generality of the foregoing:
(i) Each Lender that is a “United States person” (as defined in
Section 7701(a)(30) of the Code) shall deliver to the Borrowers and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original of Internal Revenue Service Form
W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding;
(ii) Each Lender
that is not a “United States person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrowers and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to
time thereafter when required by Law or upon the reasonable request of the Borrowers or the Administrative Agent) whichever of the following is applicable:
(A) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms)
claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(B) two duly completed
copies of Internal Revenue Service Form W-8ECI (or any successor forms),
(C) in the case of a Lender claiming the benefits
of the exemption for portfolio interest under Section 871(h) or 881(c) or the Code, (x) a certificate, in substantially the form of Exhibit L (any such certificate a “United States Tax Compliance
Certificate”), or any other form approved by the Administrative Agent, to the effect that such Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent
shareholder” of the Parent Borrower within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that no payments in connection
with the Loan Documents are effectively connected with such Lender’s conduct of a U.S. trade or business, and (y) two duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms),
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(D) to the extent a Lender is not the beneficial owner (for example, where
the Lender is a partnership), Internal Revenue Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, as applicable (or any successor forms), a United States Tax Compliance Certificate, Form W-9, Form W-8IMY (or
other successor forms) or any other required information from each beneficial owner, as applicable (provided that, if the Lender is a partnership and one or more direct or indirect partners are claiming the portfolio interest exemption, the
United States Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)), or
(E) two duly completed copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury
regulations) 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.
(iii) 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 Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers 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 Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or
has not complied with such Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this
Section 3.01(f)(iii), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.
Notwithstanding any other provision of this clause (f), a Lender
shall not be required to deliver any form that such Lender is not legally eligible to deliver.
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(f).
(g) On or before the date that it becomes a party to this Agreement, the Administrative Agent shall provide the Borrowers with two duly
completed copies of, if it is a United States person (as defined in Section 7701(a)(30) of the Code), Internal Revenue Service Form W-9 certifying that it is exempt from U.S. federal backup withholding, and, if it is not a United States person,
(1) Internal Revenue Service Form W-8ECI with respect to payments to be received by it as a beneficial owner and (2) Internal Revenue Service Form W-8IMY (together with required accompanying documentation) with respect to payments to be
received by it on behalf of the Lenders, and shall update such forms periodically upon the reasonable request of the Borrowers. Notwithstanding any other provision of this clause (g), the Administrative Agent shall not be required to deliver
any form that such Administrative Agent is not legally eligible to deliver.
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(h) For the avoidance of doubt, the term “Lender” shall, for purposes of this
Section 3.01, include any L/C Issuer and any Swing Line Lender and “applicable Law” includes 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 and the
repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 3.02. Inability to Determine Rates..
(a) If in connection with any request for a Term SOFR Loan or an Alternative Currency Loan or
a conversion to or continuation thereof, as applicable (i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate for the Relevant Rate for the applicable currency has
been determined in accordance with Section 3.02(b) and the circumstances under clause (i) of Section 3.02(b) or the Scheduled Unavailability Date have occurred with respect to such Relevant Rate (as applicable) or
(B) adequate and reasonable means do not otherwise exist for determining the Relevant Rate for the applicable currency for any determination date(s) or requested Interest Period, as applicable, with respect to a proposed Term SOFR Loan or
Alternative Currency Loan or in connection with an existing or proposed Base Rate Loan or (ii) the Administrative Agent or the Required Lenders determine that for any reason the Relevant Rate with respect to a proposed Loan denominated in an
Agreed Currency for any requested Interest Period or determination date(s) does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrowers and each Lender.
Thereafter, (x) the obligation of the Lenders to make or maintain Loans in the affected currencies, as applicable, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended, in each case to the extent of the affected Alternative
Currency Loans or Interest Period or determination date(s), as applicable and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR
component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 3.02(a), until the
Administrative Agent upon instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (i) the Borrowers may revoke any pending request for a Borrowing of, conversion to Term SOFR Loans, or Borrowing of, or
continuation of Alternative Currency Loans to the extent of the affected Alternative Currency Loans or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount specified therein and (ii) (A) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately and
(B) any outstanding affected Alternative Currency Loans, at the Borrower’s election, shall either (1) be converted into a Borrowing of Base Rate Loans denominated in Dollars in the Dollar Equivalent of the amount of such Alternative
Currency Loan immediately upon such election (or deemed election pursuant to the proviso below), in the case of an Alternative Currency Daily Rate Loan or at the end of the applicable Interest Period, in the case of an Alternative Currency Term Rate
Loan or (2) be prepaid in full immediately upon such election in the case of an Alternative Currency Daily Rate Loan, or at the end of the applicable Interest Period, in the case of an Alternative Currency Term Rate Loan; provided that
if no election is made by the Borrowers (x) in the case of an Alternative Currency Daily Rate Loan, by the date that is three Business Days after receipt by the Parent Borrower of such notice or (y) in the case of an Alternative Currency
Term Rate Loan, by the last day of the current Interest Period for the applicable Loan, the Borrowers shall be deemed to have elected clause (1) above.
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(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents
(and any Swap Contract evidencing Obligations shall be deemed not a
““
Loan
Document””
for purposes of this Section 3.02), but subject to the provisions of the next succeeding paragraph with respect to Term SOFR, if the Administrative Agent determines (which
determination shall be conclusive absent manifest error), or the Borrowers or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrowers) that the Borrowers or Required Lenders (as
applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining the Relevant
Rate for an Agreed Currency because none of the tenors of such Relevant Rate (including any forward-looking term rate thereof) is available or published on a current basis and such circumstances are unlikely to be temporary;
(ii) the Applicable Authority has made a public statement identifying a specific date after which all tenors of the Relevant
Rate for an Agreed Currency (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 such Agreed Currency, or shall or will
otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue to provide such representative tenor(s) of the Relevant Rate for such
Agreed Currency (the latest date on which all tenors of the Relevant Rate for such Agreed Currency (including any forward-looking term rate thereof) are no longer representative or available permanently or indefinitely, the “Scheduled
Unavailability Date”); or
(iii) with respect to Loans denominated in an Agreed Currency other than Dollars,
syndicated loans currently being executed and agented in the United States, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Relevant Rate for an Agreed Currency.
or if the events or circumstances of the type described in clauses (i), (ii) and (iii) above have
occurred with respect to the Successor Rate then in effect, and the Administrative Agent determines in good faith that none of the Successor Rates is available, then, in each case, the Administrative Agent and the Parent Borrower may amend this
Agreement solely for the purpose of replacing the Relevant Rate for an Agreed Currency or any then current Successor Rate for an Agreed Currency in accordance with this Section 3.02 with an alternative benchmark rate giving due
consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the United States and denominated in such Agreed Currency for such alternative benchmarks, and, in each case, including any
mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the United States and denominated in such Agreed Currency for such
benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent in good faith from time to time in its reasonable discretion and may be periodically updated
(and any such proposed rate, including for the avoidance of doubt, any adjustment thereof, a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent
shall have posted such proposed amendment to all Lenders and the Borrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such
amendment.
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If Term SOFR is the then-current benchmark for Loans denominated in Dollars, then
notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrowers or Required Lenders notify the
Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrowers) that the Borrowers or Required Lenders (as applicable) have determined, that:
(i)
(i) adequate and reasonable means do not
exist for ascertaining one month, three month and six month interest periods of Term SOFR, including, without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be
temporary; or
(ii)
(ii) CME or any successor administrator of
the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying
a specific date after which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar
denominated syndicated loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide such interest
periods of Term SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Term SOFR
Scheduled Unavailability Date”);
then, on a date and time determined by the Administrative Agent (any such date,
the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no
later than the Term SOFR Scheduled Unavailability Date, unless the Administrative Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, Term SOFR will be replaced hereunder and under any Loan
Document with Daily Simple SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any
other Loan Document and Daily Simple SOFR shall be the Successor Rate to Term SOFR. If the Successor Rate to Term SOFR is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
The Administrative Agent will promptly (in one or more notices) notify the Borrowers and each Lender of the implementation of any Successor
Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market
practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent (in consultation with the Parent Borrower).
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Notwithstanding anything else herein, if at any time any Successor Rate as so determined
would otherwise be less than 0.00%, the Successor Rate will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time
to time, in consultation with the Parent Borrower, and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of
any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Parent Borrower and the Lenders reasonably
promptly after such amendment becomes effective.
For purposes of this Section 3.02, those Lenders that either have not made,
or do not have an obligation under this Agreement to make, the relevant Loans in the applicable Agreed Currency shall be excluded from any determination of Required Lenders.
Section 3.03. Increased Cost and Reduced Return; Capital Adequacy; Reserves on Loans. .
(a) If any Lender determines that as a result of any Change in Law, 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 Loan or 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 3.03(a)
any such increased costs or reduction in amount resulting from (i) Indemnified Taxes indemnifiable under Section 3.01, (ii) Taxes described in clauses (b) through
(d) of the definition of Excluded Taxes or (iii) Connection Income Taxes), 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 3.05), the Parent Borrower shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction; provided that in
the case of any Change in Law only applicable as a result of the proviso set forth in the definition thereof, such Lender will only be compensated for such amounts that would have otherwise been imposed under the applicable increased cost provisions
and only to the extent the applicable Lender is imposing such charges on other similarly situated borrowers under comparable syndicated credit facilities.
(b) If any Lender determines that as a result of any Change in Law regarding capital adequacy, liquidity or any change therein or in the
interpretation thereof, in each case after the date hereof, or compliance by such Lender (or its Applicable Lending Office) therewith, has the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender’s obligations hereunder (taking into consideration its policies with respect to capital adequacy, liquidity 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 3.05), the Borrowers 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) [Reserved.]
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(d) Subject to Section 3.05(b), failure or delay on the part of any Lender to
demand compensation pursuant to this Section 3.03 shall not constitute a waiver of such Lender’s right to demand such compensation.
(e) If any Lender requests compensation under this Section 3.03, then such Lender will, if requested by the Borrowers, use
commercially reasonable efforts to designate another Applicable 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 Applicable Lending Office(s) to suffer no material economic, legal or regulatory disadvantage; and provided, further that nothing in this
Section 3.03(e) shall affect or postpone any of the
Obligations of the Borrowers or the rights of such Lender pursuant to Section 3.03(a), (b) or (d).
Section 3.04.
Funding
LossesFunding Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period, relevant interest payment date or payment period, as applicable, for such Loan, if applicable;
(b) any failure by the
Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan (other than a Base Rate Loan) on the date or in the amount notified by the Borrowers; or
(c) any payment by the Borrowers of any Loan (or interest due thereon or drawings under any Letter of Credit) denominated in Euro or an
Alternative Currency in a different currency;
including any loss or expense 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.
For purposes of
calculating amounts payable by the Borrowers to the Lenders under this Section 3.04, each Lender shall be deemed to have funded each Alternative Currency Term Rate Loan made by it at the Alternative Currency Term Rate for such Loan by a
matching deposit or other borrowing in the offshore interbank eurodollar market for such currency for a comparable amount and for a comparable period, whether or not such Alternative Currency Term Rate Loan was in fact so funded.
Section 3.05. 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 Borrowers setting forth the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of demonstrable error. In determining such amount, such Agent or such Lender may
use any reasonable averaging and attribution methods.
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(b) With respect to any Lender’s claim for compensation under
Section 3.01, Section 3.02, Section 3.03 or Section 3.04, the Borrowers 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 Borrowers 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 Borrowers under Section 3.03, the Borrowers may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such
Lender to make or continue Term SOFR Loans or Alternative Currency Term Rate Loans, as applicable, from one Interest Period to another, or to convert Base Rate Loans into 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 3.05(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 Term SOFR Loan from one Interest Period to another, or to convert Base Rate Loans
into Term SOFR Loans shall be suspended pursuant to Section 3.05(b) hereof, such Lender’s Term SOFR Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such
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
Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to such conversion no longer exist:
(i) to the extent that such Lender’s Term SOFR Loans have been so converted, all payments and prepayments of principal
that would otherwise be applied to such Lender’s Term SOFR Loans shall be applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as Term SOFR Loans
shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into Term SOFR Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to the Borrowers (with a copy to the Administrative Agent) that the circumstances specified in
Section 3.01, Section 3.02, Section 3.03 or Section 3.04 hereof that gave rise to the conversion of such Lender’s Term SOFR Loans denominated in Dollars pursuant to this Section 3.05
no longer exist (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Term SOFR Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted to Term
SOFR Loans, on the first day(s) of the next succeeding Interest Period(s) for such outstanding Term SOFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Term SOFR Loans and by such Lender
are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective principal amount of Commitments.
Section 3.06. Replacement of Lenders under Certain Circumstances. .
(a) If at any time (i) any Lender requests reimbursement for amounts
owing pursuant to Section 3.01 or Section 3.03 as a result of any condition described in such Sections and Lender has declined or is unable to designate a different lending office in accordance with
Section 3.01(e) or any Lender ceases to make Term SOFR Loans or Alternative Currency Loans as a result of any condition described in Section 3.02 or Section 3.03, (ii) any Lender becomes a Defaulting Lender,
(iii) any Lender becomes a Non-Consenting Lender or (iv) any Lender becomes a Non-Extending Lender, then the Borrowers may, on prior written notice to the Administrative Agent and such Lender, replace such Lender by requiring such Lender
to (and such Lender shall be obligated to)
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assign pursuant to Section 10.07(b) (with the assignment fee to be paid by the Borrowers in such instance) all of its rights and obligations under this Agreement (or, with respect to
clause (iii) and clause (iv) above, all of its rights and obligations with respect to the Class of Loans or Commitments that is the subject of the related consent, waiver or amendment) to one or more Eligible Assignees
(provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrowers 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 3.03 or payments required to be made pursuant to Section 3.01, 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 or a Non-Extending Lender, the applicable Eligible Assignees shall have agreed to the applicable departure, waiver or amendment of the Loan Documents).
(b) Any Lender being replaced pursuant to Section 3.06(a) above shall (i) execute and deliver an Assignment and Assumption
with respect to such Lender’s Commitment and outstanding Loans and participations in L/C Obligations and Swing Line Loans, as applicable (provided that the failure of any such Lender to execute an Assignment and Assumption shall not
render such assignment invalid and such assignment shall be recorded in the Register) and (ii) deliver Notes, if any, evidencing such Loans to the Borrowers 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 Commitments and outstanding Loans and participations in L/C Obligations and Swing Line Loans, as applicable, (B) all obligations of the Loan
Parties owing to the assigning Lender relating to the Loan Documents and participations so assigned shall be paid in full by the assignee Lender or the Loan Parties (as applicable) to such assigning Lender concurrently with such assignment and
assumption, together with any amounts owing to the assigning Lender (other than a Defaulting Lender) under Section 3.04 as a consequence of such assignment and (C) upon such payment and, if so requested by the assignee Lender, the
assignor Lender shall deliver to the assignee Lender the appropriate Notes executed by the Borrowers, 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.
(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 back-up 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 Borrowers or the Administrative Agent have 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 all affected Lenders 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 Required Revolving Credit 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.”
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(e) Notwithstanding anything herein to the contrary, each party hereto agrees that any
assignment pursuant to the terms of this Section 3.06 may be effected pursuant to an Assignment and Assumption executed by the Borrowers, the Administrative Agent and the assignee and that the Lender making such assignment need not be a
party thereto.
Section 3.07.
IllegalityIllegality
. 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
perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Credit Extension or to determine or charge interest rates based upon a Relevant Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to engage in reverse repurchase of U.S. Treasury securities transactions of the type included in the definition of SOFR, or to determine or charge interest rates based upon a Relevant Rate or to purchase
or sell, or to take deposits of, any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain,
fund or charge interest with respect to any such Credit Extension or continue Alternative Currency Loans, Term SOFR Loans or Daily Simple SOFR Swingline Loans, as applicable, or to convert Base Rate Loans to Term SOFR Loans or Daily Simple SOFR
Swingline Loans to Term SOFR Loans shall be suspended, and (ii) 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 the Term SOFR component of the Base Rate, in each case until such
Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay all Term SOFR Loans, Alternative Currency Loans or Daily Simple SOFR Swingline Loans, as applicable, in the affected currency or currencies or, if applicable and such Loans are denominated in Dollars, convert all Term
SOFR Loans or Daily Simple SOFR Swingline Loans 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 the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon 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 SOFR. Upon any such prepayment or
conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
Section 3.08. SurvivalSurvival
. All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder and any assignment of
rights by or replacement of a Lender.
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ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions to Closing Date. The obligation of each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The
Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (which may be delivered via email) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party (other than in respect of (a)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty from each of the Loan Parties listed on the signature pages
thereto;
(ii) a Note executed by the Borrowers in favor of each Lender that has requested a Note at least five
(5) Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A
required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents);
(A) certificates, if any, representing the pledged equity referred to therein, accompanied by undated stock powers, if
applicable, executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral 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 and Collateral Agent;
(iv) such certificates, copies of Organization Documents of the Loan Parties, resolutions or other action and incumbency
certificates 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;
(v) legal opinions, in customary form, from (i) Kirkland & Ellis LLP, as New York and Delaware counsel to the
Loan Parties, (ii) Greenbaum, Rowe, Smith & Davis LLP, as special New Jersey counsel to the Loan Parties, and (iii) Hunton Andrews Kurth LLP, as special Virginia and North Carolina counsel to the Loan Parties;
(vi) a certificate signed by a Responsible Officer of the Parent Borrower certifying that the conditions set forth in clause
(f) below is satisfied;
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(vii) a certificate attesting to the Solvency of the Parent Borrower and its
Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Closing Date Transactions, from Parent Borrower’s chief financial officer or other officer with equivalent duties.
(b) The Parent Borrower shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in
connection with this Agreement, including reimbursement or payment of reasonable and documented costs and expenses actually incurred by the Lead Arranger or Administrative Agent in connection with this Agreement, including the reasonable fees,
expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, to the extent invoiced at least three (3) Business Days prior to the Closing Date.
(c) The Lead Arrangers shall have received Audited Parent Borrower Financial Statements.
(d) Prior to or substantially simultaneously with the occurrence of the closing on the Closing Date, the Refinancing shall have occurred.
(e) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all
documentation and other information about the Borrowers and the Guarantors as has been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent and the Lead Arrangers that they
reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and, to the extent required by 31 C.F.R.
§ 1010.230, a certification of the Borrowers regarding beneficial ownership.
(f) Since December 31, 2020, no events have
occurred or circumstances have arisen that, individually or in the aggregate, have had or reasonably would be expected to have, a Material Adverse Effect.
For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such
Lender has notified the Administrative Agent of any disagreement prior to the Closing Date. For the avoidance of doubt,
the foregoing conditions precedent were satisfied on the Closing Date.
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 Term SOFR Loans or Alternative Currency Term Rate Loans, as applicable) on or after the Amendment No. 4 Effective Date is subject to the
following conditions precedent:
(a) The representations and warranties of the Borrowers and each other Loan Party contained in
Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Extension; provided that, to the extent that such representations and warranties specifically refer to an
earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is
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qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects
on such respective dates; provided, further, that in the case of an Incremental Revolving Commitment the proceeds of which will be used to finance a Limited Condition Transaction for which an LCT Election has been made, the
foregoing will be limited to the Specified Representations.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom; provided, that, in the case of any Incremental Revolving Commitments, the proceeds of which will be used to finance a Limited Condition Transaction for which an LCT Election has
been made, this clause (b) shall be limited to Specified Events of Default.
(c) 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.
(d)
Immediately after giving effect to any such proposed Borrowing of Revolving Credit Loans under the Amendment No. 4 Revolving Credit Facility and the application of the proceeds therefrom, the Consolidated Cash Balance shall not exceed the
Consolidated Cash Balance Limit; provided, that the Consolidated Cash Balance shall not include any cash or Cash Equivalents reasonably expected to be applied (other than principal payments of Indebtedness for borrowed money at their final stated
maturity) within five (5) Business Days of such Borrowing (as determined by the Parent Borrower in good faith) for the purpose of satisfying this condition in Section 4.02(d).
(e) Solely to
the extent that after giving effect to any such proposed Borrowing of Revolving Credit Loans under the Amendment No. 4 Revolving Credit Facility, the aggregate principal amount of Revolving Credit Loans outstanding under the Amendment
No. 4 Revolving Credit Facility would exceed $250,000,000 at such time (the amount of Revolving Credit Loans in excess of $250,000,000, the “Excess Revolving Credit Loans”), the Excess Revolving Credit Loans are being
incurred to finance a Specified Permitted Acquisition.
Each Request for
Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans, as applicable) submitted by the Borrowers shall be deemed to
be a representation and warranty that the applicable conditions specified in Section 4.02(a) and, if applicable,
Section
4.024.02
(b), Section 4.02(d) and
Section 4.02(e) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Agents and the Lenders on the Closing Date and on the date of each subsequent Credit Extension
that:
Section 5.01. Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each other Restricted
Subsidiary (a) is a Person duly incorporated, organized or formed, and validly existing and, where applicable, in good standing 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 and (ii) execute, deliver and perform its obligations under the Loan
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Documents to which it is a party, (c) is duly qualified and, where applicable, in good standing 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 material compliance with all Laws (including applicable portions of the USA PATRIOT Act and
applicable anti-money laundering laws),, orders,
writs, injunctions and orders 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 Parent Borrower),
(b))
(i), (c), (d) or (e), to the extent that failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.02.
Authorization; No ContraventionAuthorization; 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, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) contravene the terms of any of
such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or require any payment to be made under (A) any Contractual Obligation exceeding the Threshold Amount to which such Person is a
party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is
subject, (iii) result in the creation of any Lien (other than under the Loan Documents and Liens subject to the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other
Acceptable Intercreditor Agreement) or (iv) violate any material Law; except (in the case of clauses
(b))
(ii) and
(b))
(iv)), to the extent that such conflict, breach, contravention, payment or violation could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.03. Governmental Authorization; Other Consents. No 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
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 and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 5.04.
Binding EffectBinding
Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is 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 party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.
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Section 5.05. Financial Statements; No Material Adverse Effect. .
(a) The Audited Parent Borrower Financial Statements fairly present in
all material respects the consolidated financial condition of the Parent Borrower and its Subsidiaries, in each case, as of the dates thereof and their results of operations for the period covered thereby, except as otherwise disclosed to the
Administrative Agent prior to the Amendment No. 2 Effective Date, and in the case of the Audited Parent Borrower Financial Statements, prepared in accordance with GAAP consistently applied throughout the periods covered thereby.
(b) Since December 31, 2020the Amendment No. 4 Effective Date, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
Section
5.06.
LitigationLitigation. Except as set forth on Schedule 5.06, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Parent Borrower, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Parent Borrower or
any Restricted Subsidiary or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.07. Ownership of Property; Liens.
.
(a) Each Loan Party and each of its Subsidiaries has good and valid title to, or valid leasehold interests in, or easements or other limited
property interests in, all property material to the ordinary conduct of its business, free and clear of all Liens other than Permitted Liens, except where the failure to have such title or other interest could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) Other than as set forth in Schedule 1.01E, there are no fee-owned
real properties owned by any Loan Party as of the Amendment No. 2 Effective Date and located in the United States with a fair market value, as of the Amendment No. 2 Effective Date, in excess of $15,000,000 individually.
Section 5.08.
Environmental
MattersEnvironmental Matters. Except as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect:
(a) there are no pending or, to the knowledge of the Parent Borrower,
threatened claims, actions, suits, notices of violation, notices of potential responsibility, disputes or proceedings by or involving any Loan Party or any of their Subsidiaries alleging potential liability or responsibility for violation of, or otherwise relating to, any Environmental Law;
(b) (i) there is no asbestos or asbestos-containing material on any property currently owned, leased or operated by any Loan Party or any of
their Subsidiaries; and (ii) there has been no Release of Hazardous Materials at, on, under or from any such property, in each case of (i) and (ii) which would reasonably be expected to give rise to any Environmental Liability of any
Loan Party or any of their Subsidiaries;
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(c) neither any Loan Party nor any of their Subsidiaries is undertaking, either individually
or together with other persons, any investigation or response action relating to any actual or threatened Release of Hazardous Materials at any location, either
voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law;
(d) all Hazardous Materials transported from any property currently or, to the knowledge of the Parent Borrower or its Subsidiaries, formerly
owned, leased or operated by any Loan Party or any of their Subsidiaries for off-site disposal have been disposed of in compliance with all Environmental Laws;
(e) none of the Loan Parties nor any of their Subsidiaries is subject to or has contractually or by operation of Law assumed any Environmental
Liability of any third party; and
(f) the Loan Parties and each of their Subsidiaries and their respective businesses, operations and
properties are in compliance with all Environmental Laws.
Section 5.09.
TaxesTaxes. The Parent Borrower and each Restricted Subsidiary have timely filed all federal, provincial, state, municipal, foreign and other Tax returns and reports required to be filed, and have timely paid all federal,
provincial, state, municipal, foreign and other Taxes levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP and, except for failures to file or pay as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. There are no Tax
audits, deficiencies, assessments or other claims with respect to the Parent Borrower or any Restricted Subsidiary that could, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 5.10. Compliance with ERISA.
.
(a) Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is
in compliance with the applicable provisions of ERISA, the Code and other federal or state Laws and applicable foreign laws, respectively.
(b) (i) No ERISA Event or similar event with respect to a Foreign Plan has occurred or is reasonably expected to occur; (ii) 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 Section 4201
et seq. or 4243 of ERISA with respect to a Multiemployer Plan; and (iii) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA, except, with respect to
each of the foregoing clauses of this Section 5.10, as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(c) As of the Amendment No. 2 Effective Date, no Loan Party is and no Loan Party will become (1) an employee benefit plan subject to
Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code, (3) an entity deemed to hold Plan Assets of any such plans or accounts, or (4) a “governmental plan” within the meaning of
Section 3(32) of ERISA.
Section 5.11. Subsidiaries; Equity Interests. As of the Amendment No. 24 Effective Date, neither the Parent Borrower nor any other Loan Party has any Subsidiaries other than those specifically disclosed in Schedule 5.11, and all of the outstanding Equity Interests in the
Borrowers and the Subsidiaries of the Parent Borrower have been validly issued, are fully paid and, in the case of Equity Interests representing corporate interests, nonassessable and, on the Amendment No. 24
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Effective Date, all Equity Interests owned directly or indirectly by the Parent Borrower or any other Loan Party are owned free and clear of all Liens except (i) those created under the
Collateral Documents, and (ii) those Liens permitted under Section 7.02. As of the Amendment No. 24 Effective Date, Schedule 5.11 (a) sets forth the name and
jurisdiction of organization or incorporation of each Subsidiary, (b) sets forth the ownership interest of the Borrowers and any of their Subsidiaries in each of their Subsidiaries, including the percentage of such ownership and
(c) identifies each Person the Equity Interests of which are required to be pledged on the Amendment No. 24 Effective Date pursuant to the Collateral and Guarantee Requirement.
Section 5.12. Margin Regulations; Investment Company Act. .
(a) No Loan Party is engaged nor will it engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings or drawings
under any Letter of Credit will be used for any purpose that violates Regulation U or Regulation X of the FRB.
(b) None of the Parent Borrower or any Restricted
SubsidiaryNo Loan Party is or is required to be
registered as an “investment company” under the Investment Company Act of 1940, as amended.
Section 5.13. DisclosureDisclosure. No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent, any Lead Arranger or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains when furnished any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto);
provided that, with respect to projected financial information, the Parent Borrower and the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation;
it being understood that (i) such projections are as to future events and are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Parent Borrower and the
Borrowers, (ii) no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and
(iii) such differences may be material.
Section 5.14. Intellectual Property; Licenses, Etc.
Each of the Loan Parties and the other Restricted Subsidiaries own, license or possess the right to use, all of the trademarks, service marks,
trade names, domain names, copyrights, patents, patent rights, technology, software, know-how, database rights, design rights and other intellectual property rights, including registrations and applications for registration thereof, all rights of
priority thereto, and all rights to sue for any infringement, misappropriation or violation, and all income, royalties, damages and payments due or payable, therefore (collectively, “IP Rights”) that are used in or reasonably
necessary for the operation of their respective businesses as currently conducted, and, to the knowledge of the Parent Borrower, without violation of the rights of any Person, except to the extent such violation or failure to own, license, or
possess, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any such IP Rights, is pending or, to the knowledge of the Parent Borrower, threatened against any
Loan Party or Subsidiary, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
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Section 5.15.
SolvencySolvency. On the Amendment No. 2 Effective Date after giving effect to the Transactions, the Parent Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
Section 5.16.
Collateral
DocumentsCollateral Documents. The Collateral Documents are 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 and to the extent intended to be created thereby, except as such enforceability
may be limited by Debtor Relief Laws and by general principles of equity, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable Laws (which filings or recordings shall be made
to the extent required by any Collateral Document) 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 required by any Collateral Document or the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor
Agreement, the Junior Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement, as
applicable), the Liens created by such Collateral Documents will constitute so far as possible under relevant Law fully perfected Liens on (with the priority set forth in the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor
Agreement),
the Junior Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement, as applicable), and security interests in, all right, title and interest of the Loan Parties in such
Collateral to the extent perfection can be obtained by filing financing statements or upon the taking of possession or control, in each case subject to no Liens other than Permitted Liens.
Section 5.17.
Use of ProceedsUse
of Proceeds. The proceeds of the Revolving Credit Loans and the L/C Credit Extensions shall be used by the Borrowers for working capital and other general corporate purposes, including
financing permitted acquisitions and capital expenditures and investments, restricted payments and other transactions permitted by this Agreement.
Section 5.18. Sanctions Laws and Regulations and Anti-Corruption Laws. .
(a) Each of the Parent Borrower and its Subsidiaries is in compliance, in
all material respects, with the Sanctions Laws and Regulations, the FCPA and other applicable anti-corruption laws. No Borrowing or use of proceeds of any Borrowing or drawing under any Letter of Credit will violate or result in the violation of any
Sanctions Laws and Regulations applicable to any party
hereto. or will be
used for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions Laws and
Regulations.
(b) None of (I) the Borrowers or any other Loan Party or
(II) a Restricted Subsidiary that is not a Loan Party or, to the knowledge of the Parent Borrower, any director, manager, officer, agent or employee of the Parent Borrower or any of its Restricted Subsidiaries, in each case, is (i) a Person (or
owned 50% or more by one or more Persons or under Control of a Person) on the list of “Specially Designated Nationals and Blocked Persons” or the target of the limitations or prohibitions under any Sanctions Laws and Regulations, or
(ii) a Person located, organized, or resident in a country or territory that is the subject of comprehensive sanctions under Sanctions Laws and Regulations (currently, Crimea, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic, and the non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine).
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(c) No part of the proceeds of any Loan or Letter of Credit will be used for any improper
payments, directly or, to the knowledge of the Parent Borrower, indirectly, to any governmental official or employee, political party, official of a political party, candidate for political office, or any other party (if applicable) in order to
obtain, retain or direct business or obtain any improper advantage, in each case in violation of the FCPA or any applicable similar laws, rules or regulations issued, administered or enforced by any Governmental Authority having jurisdiction over the Parent Borrower or the Borrowers.
Section 5.19. Amendment No. 2 Effective Date
LCT Representations.
The Parent Borrower represents that, to the extent required, (i) it has made a “limited conditionality election in accordance with the 2021 Indenture with respect
to the Transactions and the LCT Test Date (as defined in the 2021 Indenture) shall be the date of the Merger Agreement and (ii) after giving effect to the preceding clause (i), the Term Facility (and any Senior Notes issued pursuant to the 2022
Indenture) are permitted under the Indentures and this Agreement (collectively, the “LCT Representations”).
ARTICLE VI
AFFIRMATIVE COVENANTS
From and after the Closing Date and for so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
which is accrued and payable shall remain unpaid or unsatisfied (other than contingent indemnification obligations not yet due, Secured Hedge Agreements and Cash Management Obligations), or any Letter of Credit shall remain outstanding, the Parent
Borrower shall, and shall (except in the case of the covenants set forth in Section 6.01, Section 6.02 and Section 6.03) cause each Restricted Subsidiary to:
Section 6.01.
Financial
StatementsFinancial Statements. Deliver to the Administrative Agent for prompt further
distribution to each Lender:
(a) as soon as available, but in any event not to exceed the later of (i) ninety (90) days
after the end of each fiscal year of the Parent Borrower and (ii) the date required by the SEC reporting requirements (as such may be extended by the SEC), a consolidated balance sheet of the Parent Borrower 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 an 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 or exception or any qualification or exception as to the scope of such audit (other than as a result of (x) current debt maturity in
the final year of any Indebtedness permitted under Section 7.01 or (y) a prospective or actual default in respect of any financial maintenance covenant in any agreement
governing Indebtedness of the Parent Borrower or any Restricted Subsidiary);
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(b) as soon as available, but in any event not to exceed the later of (i) forty-five
(45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Parent Borrower and (ii) the date required by the SEC reporting requirements (as such may be extended by the SEC), a consolidated
balance sheet of the Parent Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (i) consolidated statements of income or operations for such fiscal quarter and for the portion of the fiscal year then ended and
(ii) consolidated statements of cash flows for the portion of the fiscal year then ended, setting forth in comparative form the income statement figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Parent Borrower as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and
cash flows of the Parent Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes; and
(c) simultaneously with the delivery of each set of consolidated financial statements referred to in (a) and (b) above (i) the related consolidating
financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements and (ii) a customary management discussion and analysis of operating results.
Notwithstanding the foregoing, the obligations in paragraphs (a), (b) and (c) of this
Section 6.01 may be satisfied with respect to financial information of the Parent Borrower and its Subsidiaries by furnishing the Parent Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, 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 an independent registered public accounting firm of nationally recognized
standing, which report and opinion, subject to the same exceptions set forth above, shall be prepared in accordance with generally accepted auditing standards.
Section 6.02.
Certificates; Other
InformationCertificates; Other Information. Deliver to the Administrative Agent for
prompt further distribution to each Lender:
(a) no later than five (5) Business Days after the delivery of the financial
statements referred to in Section 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Parent Borrower;
(b) promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements
which the Parent Borrower 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 in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(c) promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party or any of its
Restricted Subsidiaries (other than in the ordinary course of business) that would reasonably be expected to result in a Material Adverse Effect;
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(d) together with the delivery of the Compliance Certificate pursuant to Section 6.02(a), (i) a report setting forth the information
required by Section 3.03 of the Security Agreement or confirming that there has been no change in such information since the Closing Date or the date of the last Compliance Certificate, (ii) [reserved], (iii) a list of
Subsidiaries that identifies each Subsidiary as a Material Subsidiary, Unrestricted Subsidiaries or an Immaterial Subsidiary as of the last day of the period covered by such Compliance Certificate or a confirmation that there is no change in such
information since the later of the Closing Date or the date of the last such list and (iv) such other information required by the Compliance Certificate; provided that delivery of the items listed in clauses (i) and
(iii) above shall not be require to extent there have been no changes with respect thereto since such items were last delivered;
(e) promptly, (x) such additional information regarding the business, legal, financial or corporate affairs of any Loan Party or any
Material Subsidiary, 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 and (y) information and documentation reasonably
requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and 31 C.F.R. § 1010.230 (to the extent
applicable).
Documents required to be delivered pursuant to Section 6.01(a), (b) and (c), , or Section 6.02(a),
Section 6.02(b) or Section 6.02(c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent Borrower posts
such documents, or provides a link thereto, on the website of the Parent Borrower at httphttps://owens-minorwww.accendrahealth
.com or any other website address provided to the Administrative Agent by the Parent Borrower; (ii) on which such documents are posted on EDGAR or (ii) on which such documents are posted
on the Parent Borrower’s 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 Parent 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 Parent 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.
The Parent Borrower and the Borrowers hereby acknowledge 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 any Borrower hereunder (collectively, the “Borrower
Materials”) by posting such Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who
do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to
such Persons’ securities. The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower
Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Lead Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it
may be
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sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws (provided, however, that to the
extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Side Information;” and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Side Information.”
Section 6.03. NoticesNotices. Promptly after a Responsible Officer obtains actual knowledge thereof, notify the Administrative Agent for prompt further distribution to each Lender:
(a) of the occurrence of any Default, which notice shall specify the nature thereof, the period of existence thereof and what action the Parent
Borrower proposes to take with respect thereto;
(b) of any litigation or governmental proceeding (including, without limitation, pursuant
to any Environmental Laws) pending against the Parent Borrower or any of the Restricted Subsidiaries that could reasonably be expected to be determined adversely and, if so determined, to result in a Material Adverse Effect; and
(c) of the occurrence of any ERISA Event or similar event with respect to a Foreign Plan that could reasonably be expected to have a Material
Adverse Effect.
Section 6.04. Maintenance of Existence. (a) Preserve, renew and maintain in full force and effect its
legal existence under the Laws of the jurisdiction of its organization or incorporation and (b) take all reasonable action to maintain all rights (including IP Rights), privileges (including its good standing), permits, licenses and franchises
necessary or desirable in the normal conduct of its business, except in the case of clauses (a) (other than with respect to the Parent Borrower) and (b), (i) to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04 or Section 7.05.
Section 6.05. Maintenance of Properties. Except if the failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (a) maintain, preserve and protect the Mortgaged Property and
all property and equipment material to the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and
(b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice.
Section 6.06. Maintenance of Insurance. 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 Parent Borrower and its Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons. If any portion of any 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 Flood Insurance Laws, then, to the extent required by the Flood Insurance Laws, the Parent Borrower shall, or shall cause each Loan Party to,
(i) maintain, or cause to be maintained, with a financially sound and
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reputable insurer, flood insurance in an amount 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 reasonably acceptable to the Administrative Agent. Except as otherwise contemplated by an Acceptable Intercreditor
Agreement, any such insurance (excluding business interruption insurance) maintained in the United States shall name the Collateral Agent as additional insured and loss payee, as applicable. As a condition precedent to any amendment to this
Agreement pursuant to which any increase, extension, or renewal of Loans is contemplated, the Parent Borrower shall cause to be delivered to the Administrative Agent 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 required by this Section
6.06.
Section 6.07. Compliance with Laws. Comply in all respects with the requirements of all Laws and all orders, writs, injunctions,
decrees and judgments applicable to it or to its business or property (including without limitation Environmental Laws, ERISA, Sanctions Laws and Regulations and FCPA and other applicable anti-corruption laws), except if the failure to comply
therewith could not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
Section 6.08.
Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial
transactions and matters involving the assets and business of the Parent Borrower or such Restricted Subsidiary, as the case may be.
Section 6.09.
Inspection RightsInspection
Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and visually inspect any of its properties and to discuss its affairs,
finances and accounts with its directors, managers, officers, and independent public accountants, all at the reasonable expense of the Borrowers and at such reasonable times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrowers; 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 6.09 and the Administrative Agent shall not exercise such rights more often than two (2) times during any calendar year absent the existence of an Event of Default and only one
(1) such time shall be at the Borrowers’ 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 Borrowers at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Borrowers the opportunity to participate in any discussions
with the Borrowers’ independent public accountants. Notwithstanding anything to the contrary in this Section 6.09, none of the Parent Borrower or any Restricted Subsidiary will be required to disclose or permit the inspection or
discussion of, any document, information or other matter (i) that 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 (iii) that is subject to attorney client or similar privilege or constitutes attorney work product.
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Section 6.10. Covenant to Guarantee Obligations and Give Security. At the
Borrowers’ expense, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon the formation or acquisition of any new direct or indirect Wholly Owned Subsidiary (in each case, other than an Excluded Subsidiary)
by any Loan Party, the designation in accordance with Section 6.13 of any existing direct or indirect Wholly Owned Subsidiary as a Restricted Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary or designation of
any Subsidiary as a Guarantor pursuant to the definition of Guarantors:
(i) within sixty (60) days after such
formation, acquisition, designation or occurrence or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Restricted Subsidiary to duly execute and deliver to the Administrative Agent or the Collateral Agent (as
appropriate) pledges, guarantees, assignments, Security Agreement Supplements and other security agreements and documents or joinders or supplements thereto, as reasonably requested by and in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent (to the extent applicable, consistent with the Security Agreement and other Collateral Documents in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee
Requirement;
(B) cause each such Restricted Subsidiary to deliver any and all certificates representing Equity Interests
(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 and (if applicable) instruments
evidencing the Indebtedness held by such Restricted Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Collateral Agent (or such other applicable Person in accordance with an Acceptable Intercreditor
Agreement); and
(C) take and cause such Restricted Subsidiary and each direct or indirect parent of such Restricted
Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the recording of Mortgages,
the filing of financing statements and delivery of stock and membership interest certificates) 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 with the priority required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except
as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is sought in equity or at
law);
and.
Section
6.11. Use of Proceeds (ii) within thirty (30) days after such formation, acquisition, designation or occurrence (or such longer period as
the Administrative Agent may agree in its reasonable discretion), cause each such Restricted Subsidiary to furnish to the Administrative Agent a description of the Material Real Properties owned by such Restricted Subsidiary in detail reasonably
satisfactory to the Administrative Agent;
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(iii) as promptly as practicable after the
request therefor by the Collateral Agent and to the extent in the Borrowers’ possession, deliver to the Collateral Agent with respect to each Material Real Property, any title reports, title insurance policies and surveys or applicable
environmental assessment reports; provided that with respect to any Foreign Subsidiary the requirements of this Section
6.10 shall be satisfied prior to it becoming a Guarantor; and
(iv) within ninety (90) days after such
formation, acquisition, designation or occurrence (or such longer period as the Administrative Agent may agree in its reasonable discretion), or, if flood due diligence and flood compliance has not been completed within such period, upon
confirmation from the Administrative Agent and the Lenders that flood due diligence and flood compliance as required by Section 6.06 has been completed, with respect to any Material Real Property required to be identified pursuant to the
foregoing clause (ii), cause each such
Restricted Subsidiary to subject such Material Real Property to a Lien to the extent required by the Collateral and Guarantee Requirement and take all actions referred to in paragraph (f) of the definition of “Collateral and Guarantee
Requirement” and such other actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien or otherwise in connection therewith.
(b) after
the Closing Date, promptly after the acquisition of any Material Real Property by any Loan Party, if such Material Real Property shall not already be subject to a perfected Lien (subject to Permitted Liens) under the Collateral Documents with the
priority required pursuant to the Collateral and Guarantee Requirement and is required to be, the Borrowers shall promptly give notice thereof to the Administrative Agent and within ninety (90) days (or such longer period as the Administrative
Agent may agree in its reasonable discretion) of the date of such acquisition, or, if flood due diligence and flood compliance has not been completed within such period, upon confirmation from the Administrative Agent and the Lenders that flood due
diligence and flood compliance as required by Section 6.06 has been completed, shall cause such Material Real Property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the
relevant Loan Party to take, all actions referred to in paragraph (f) of the definition of “Collateral and Guarantee Requirement” and such other actions as shall be necessary or reasonably requested by the Administrative Agent or
the Collateral Agent to grant and perfect or record such Lien or otherwise in connection therewith.
Section 6.11. Use of Proceeds. The proceeds of the Revolving Credit Loans and other Credit Extensions made on the Closing Date were used on the Closing
Date solely (i) for the Refinancing and (ii) to pay the Closing Date Transaction Expenses. Thereafter, the proceeds of the Revolving Credit Loans and other Credit Extensions have been and shall be used from time to time to finance working capital, capital expenditures and other general corporate purposes (including, without limitation, Permitted Acquisitions) of Parent Borrower and its Subsidiaries
(to the extent not inconsistent with the Loan Parties’ covenants and obligations under this Agreement and the other Loan Documents). No proceeds of Revolving Credit Loans may be used by the Parent Borrower or its Subsidiaries to directly
purchase Term Loans (other than Term Loans under the Term Facility).
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Section 6.12. Further Assurances and Post-Closing Covenants. .
(a) Promptly upon reasonable request by the Administrative Agent or the Collateral Agent
(i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) subject to the
limitations set forth in the Collateral and Guarantee Requirement, 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 or the Collateral Agent may reasonably request from time to time in order to carry out more effectively the purposes of this Agreement and the Collateral Documents; provided, however, that notwithstanding
anything to the contrary contained in this Agreement or any other Collateral Document, nothing in this Agreement or any other Collateral Document shall require any Borrower or Loan Party to make any filings or take any actions to record or to
perfect the Collateral Agent’s security interest in (i) any IP Rights other than UCC filings and the filing of documents effecting the recordation of security interests in the United States Copyright Office or United States Patent and
Trademark Office, or (ii) any non-United States IP Rights;
(b) Within the time periods specified on Schedule 6.12 hereto (as
each may be extended by the Administrative Agent in its reasonable discretion), complete such undertakings as are set forth on Schedule 6.12 hereto.
Section 6.13. Designation of Subsidiaries.
.
(a) Subject to Section 6.13(b) below, the Parent Borrower may at any time designate (i) any Restricted Subsidiary (other than a Borrower) as an
Unrestricted Subsidiary
orwith the
consent of the Required Lenders or (ii) any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after such designation, no Event of Default shall
have occurred and be continuing (including without limitation as a result of the Investment and incurrence of Indebtedness and Liens as described below in this clause (a) and immediately before and after giving effect to such
designation, the Parent Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis, with the covenants set forth in Section 7.11 (and, as a condition precedent to the effectiveness of any such designation, the
Parent Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating such compliance)). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute
an Investment by the Parent Borrower or the Borrowers, as applicable, therein at the date of designation in an amount equal to the fair market value of the Parent Borrower’s or the Borrowers’ investment therein. The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or, Liens or Investments of such Subsidiary existing at such time.
(b) (i) The Parent Borrower may not designate a Restricted Subsidiary as an Unrestricted Subsidiary unless such Restricted Subsidiary does not
have legal or beneficial ownership of, or an exclusive license to, any IP Rights constituting
Collateral (other than cash and Cash
Equivalents), in each case, that is material to the business of the Borrowers and itstheir Restricted Subsidiaries, taken as a whole and (ii) the
Borrowers and
itstheir
Restricted Subsidiaries shall not be permitted to transfer to any Unrestricted
Subsidiary, Special Controlled Entity or Non-Loan Party
legal or beneficial ownership of, or an exclusive license to, any IP Rights constituting Collateral
(other than cash and Cash Equivalents), in each case, that
is material to the business of the Borrowers and
itstheir
Restricted Subsidiaries, taken as a whole; provided, that the foregoing shall not be deemed or interpreted to restrict
(i) any exclusive licenses granted to a such
Restricted Subsidiary for a legitimate business purpose that is only exclusive with respect to a particular type or field (or types or fields) of usage or a certain territory or group of territories, in each case that does not effectively result in
the transfer of beneficial ownership of such IP Rights or (ii) any non-exclusive license.
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Section 6.14. Payment of Taxes. The Parent Borrower will pay and discharge, and
will cause each of the Restricted Subsidiaries to pay and discharge, all Taxes imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, and all lawful claims which, if unpaid, may
reasonably be expected to become a lien or charge upon any properties of the Parent Borrower or any of the Restricted Subsidiaries not otherwise permitted under this Agreement; provided that neither the Parent Borrower nor any of the
Restricted Subsidiaries shall be required to pay any such Tax or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP or which would not reasonably
be expected, individually or in the aggregate, to constitute a Material Adverse Effect.
Section 6.15. Nature of Business. The
Parent Borrower and its Restricted Subsidiaries will engage only in material lines of business substantially similar to those lines of business conducted by the Parent Borrower and its Restricted Subsidiaries on the Closing Date or any business
reasonably related, complementary or ancillary thereto.
Section
6.16. Control Agreements.
(a) Each Loan Party shall use commercially reasonable efforts to enter into Deposit Account Control Agreements within 90 days
(x) in respect of Deposit Accounts in existence on the Amendment No. 4 Effective Date, after the Amendment No. 4 Effective Date or (y) in respect of Deposit Accounts acquired or opened after the Amendment No. 4 Effective
Date, after the acquisition or opening thereof (or, in each case, such later date approved by the Administrative Agent), in a form reasonably satisfactory to the Administrative Agent, with the Collateral Agent and each other bank with which such
Loan Party maintains a Deposit Account in relation to such Deposit Accounts (in each case, other than (i) any Deposit Accounts constituting payroll, employee benefits, trust, third party escrow, pre-funding, suspense, segregated, customs and
tax withholding accounts or accounts used for other fiduciary purposes funded in the ordinary course of business or consistent with past practice or required by applicable Law, (ii) any Deposit Account that is a zero balance account for which
the balance of such Deposit Account is transferred at the end of each Business Day to a Deposit Account that is not an Excluded Account, (iii) any Deposit Account that is used in connection with a Qualified Securitization Transaction, and
(iv) other Deposit Accounts so long as the aggregate average daily maximum balance in any such individual Deposit Account over a 30-day period does not exceed $2,500,000; provided that the aggregate average daily maximum balance for all such
Deposit Accounts excluded pursuant to this clause (iv) over a 30-day period shall not exceed $10,000,000 (each such account described in clauses (i) through (iv), an “Excluded Account”)).
(b) The Loan
Parties may close Deposit Accounts and/or open new Deposit Accounts at any time subject to the prompt execution and delivery to the Collateral Agent of a Deposit Account Control Agreement to the extent required by Section 6.16(a). The Loan
Parties may open or close Excluded Accounts at any time, without requirement of delivery of a Deposit Account Control Agreement.
(c) Subject
to Section 8.02, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in their respective Deposit Accounts. The Loan Parties may direct, and shall have sole control over, the manner of disposition of
funds in their respective Excluded Accounts.
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ARTICLE VII
NEGATIVE COVENANTS
From and after the Closing Date and so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied (other than contingent indemnification obligations not yet due and payable, Cash Management Obligations and Secured Hedge Agreements or any Letter of Credit remaining outstanding), the Parent
Borrower and the Borrowers shall not, nor shall they permit any of their Restricted Subsidiaries to:
Section 7.01. Indebtedness Indebtedness. Create, incur, assume or permit to exist any Indebtedness except:
(a) Indebtedness arising under this Agreement and the other Loan Documents;
(b) (i) Surviving Indebtedness, that, to the extent in excess of $5,000,000, is listed on Schedule 7.01(b) and (ii) any
Permitted Refinancing of any of the foregoing;
(c) Indebtedness (including purchase money Indebtedness and obligations under Capitalized
Leases) incurred to finance the purchase or lease of fixed assets; provided that the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed an amount equal to the greater of (x) $230,000,00035,000,000
and
(y)
35.010.0
% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis; provided that the Indebtedness incurred pursuant to this clause (c) may not be incurred in
connection with any Liability Management Transaction;
(d) Indebtedness (other
than for borrowed money) secured by Permitted Liens;
(e) (i) intercompany Indebtedness permitted pursuant to Section 7.03;
provided that in the case of such Indebtedness owing by a Loan Party to a Subsidiary that is not a Loan Party, or in the case of such Indebtedness owing by any Domestic Loan Party to any Foreign Subsidiary, in each case, such Indebtedness
shall be subordinated to the Obligations in a manner and to the extent acceptable to the Administrative Agent; and (ii) Guarantee Obligations with respect to Indebtedness permitted under this Section 7.01; provided that (A) such Guarantee Obligations are permitted pursuant to
Section 7.03, and (B) if the Indebtedness for which the Guarantee Obligations are provided is subordinated to the Obligations, the Guarantee Obligations shall be subordinated to the guarantee provided pursuant to the Guaranty
Agreement on terms at least as favorable to the Lenders as those contained in the subordination of such
Indebtedness; and (iii) intercompany Indebtedness permitted pursuant to Section 7.03(aa); provided
that the Indebtedness incurred pursuant to this clause (e) may not be incurred in connection with any Liability Management Transaction.
(f) Indebtedness of Securitization Subsidiaries
under Qualified Securitization Transactions; provided, that, the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed the greater of
(x) $725,000,000 and (y) an amount equal to 85% of the gross book value of200,000,000; provided further that following the consummation of a Permitted Acquisition or similar Investment, such amount
shall be increased by an additional $50,000,000 with respect to any Receivables, Receivables Related Assets and/or Securitization Receivables subject to such
Qualifiedacquired in such Permitted Acquisition or similar Investment (any Indebtedness incurred pursuant to this second proviso, “Qualified Acquisition Securitization Transactions at such timeFinancing”);
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(g)
Hedging Obligations and obligations (contingent or otherwise)
existing or arising under any Swap Contract; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(h) Indebtedness under (A) the 2014 Indenture, which
Indebtedness is outstanding as of the Amendment No. 2 Effective Date, (B) the 2021 Indenture and the 2022 Indenture, in each case, which Indebtedness is outstanding as of the Amendment No. 24 Effective Date and (C) the Term Loan Credit Agreement by the Loan Parties in an aggregate outstanding principal amount
not to exceed, in the case of this sub-clause (C), the sum of $1,100,000,000, plus the aggregate principal amount of any Incremental Term Loans, Refinancing Term Loans or Extended Term Loans incurred under (and as defined inafter giving effect to the Amendment No. 4 Transactions,
(B) the Term Loan Credit Agreement after the Amendment No. 2 Effective Date in an aggregate
amount permitted to be incurred under the Term Loan Credit Agreement as in effect on the Amendment No. 2 Effective
Date, (C) the 2026 First Lien Indenture, (D) the 2026 Second Lien Indenture
and,
(E) in each case of clauses (A) through (CD), any Permitted Refinancing thereof (or successive Permitted
Refinancings thereof);
(i) Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay
obligations contained in supply arrangements, in each case, in the ordinary course of business;
(j) other Indebtedness of any member of
the Parent Borrower or any Restricted Subsidiary; provided that the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed the greater of (x) $265,000,000170,000,000
and
(y)
4050% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis;
(k) Indebtedness assumed in connection with a Permitted Acquisition or other similar Investment not prohibited hereunder and not created in
contemplation thereof, so long as such Indebtedness would have been permitted to have been incurred under Section 7.01(n);
(l)
Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of
business, 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;
(m) Contribution Indebtedness (and any Permitted Refinancing thereof);
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(n) (i)
so long as no Event of Default has occurred and is continuing, or would result from the incurrence of, other Indebtedness of the Parent Borrower or any Restricted Subsidiary in an unlimited amount (including Indebtedness incurred to finance a Permitted Acquisition or any other similar Investment not prohibited
hereunder or of Persons that are acquired by the Parent Borrower or any Restricted Subsidiary or merged into,
amalgamated or consolidated with the Parent Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement (including designating an Unrestricted Subsidiary as a Restricted Subsidiary)), so long as (A) if such Indebtedness is secured by any Liensa Lien on the Collateral (other than Liens that
areis
junior to the Liens securing the Obligations), either (I) the First
LienSecured Leverage Ratio (calculated on a Pro
Forma Basis but excluding
theany
cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than either
(x)
2.053.00
:1.00 or (y) if such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the First
LienSecured Leverage Ratio (calculated on a Pro
Forma Basis but excluding
theany
cash proceeds therefrom) immediately prior to the consummation of
such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness, or (II) the Consolidated Interest Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period is not less
than either (x) 2.00:1.00 or (y) if such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the Consolidated Interest Coverage Ratio (calculated on a Pro Forma
Basis) immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness, (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Liens securing the Obligations, the Securedunsecured, either (I) the Total Leverage Ratio (calculated on a Pro
Forma Basis but excluding
theany
cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than either
(x) 2.80:1.00 or (y) if such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the
Secured Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness and
(C) if such Indebtedness is unsecured or secured solely by assets that do not constitute Collateral, the Total Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently
ended Test Period is not greater than either (x)4.104.00:1.00 or (y) if such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the Total Leverage Ratio (calculated on a Pro Forma Basis but
excluding
theany
cash proceeds therefrom) immediately prior to the consummation of
such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness, or (II) the Consolidated Interest Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the most recently ended Test Period is not less
than either (x) 2.00:1.00 or (y) if such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the Consolidated Interest Coverage Ratio (calculated on a Pro Forma
Basis) immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness (provided that, with respect to all
Indebtedness of this
clausethese clauses (n)(i)(A) and (n)(i)(B), (1) such Indebtedness shall mature no
earlier than the Latest Maturity Date or have a Weighted Average Life to Maturity less than the Weighted Average Life to Maturity of the Revolving Credit Commitments plus ninety-one (91) days; provided that the foregoing requirements of
this clause (1) shall not apply to any Inside Maturity Debt and Qualifying Bridge
Facility, (2) the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms and conditions at the time of incurrence or issuance of such Indebtedness (as reasonably determined by the Parent Borrower in good faith)), (3) upon the effectiveness of any
suchor (C) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness incurred pursuant to Section 7.01(n)(i), except in connection with a Limited Condition Transaction (in
which case no Specified Event of Default shall have occurred and is continuing or would result therefrom), no Event of Default has occurred and is continuing or shall result therefrom and (4) the maximum aggregate principal
157
amount of Indebtedness that may be incurred pursuant to this Section 7.01(n) by Non-Loan Parties shall not exceed the
greater of (x) $130,000,000 and (y) 20.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period at any one time outstandingin contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted
Subsidiary or was otherwise acquired by the Parent Borrower or a Restricted Subsidiary) (provided that, with respect to all Indebtedness pursuant to this clause (n)(i)(C), the only obligors with respect to such Indebtedness shall be those
Persons who were obligors of such Indebtedness prior to such Permitted Acquisition or other similar Investment or merger, amalgamation or consolidation, as applicable); and (ii) any Permitted
Refinancing of Indebtedness incurred under the foregoing clause (n)(i); provided, that for the avoidance
of doubt, Indebtedness incurred pursuant to this clause (n)(i)(A) and clause (n)(i)(B) may not be secured by a Lien on the Collateral that is pari passu with the Liens securing the Obligations.
(o)
Indebtedness incurred by a Non-Loan Party (which may be secured, if at all, solely by assets of such Non-Loan party and which in any event are not Collateral), and guarantees thereof by a Non-Loan Party, in an aggregate principal amount not to
exceed the greater of (x) $130,000,000 and (y) 20.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period at any one time outstanding;
(o)
[reserved];
(p) (i) Indebtedness incurred by the Borrowers (which Indebtedness
may be secured by a Lien on the Collateral that is pari passu with, or junior to, the Liens securing the Loans) pursuant to an Acceptable Intercreditor Agreement, to the extent that the Borrowers shall have been permitted to incur the amount
of such Indebtedness pursuant to Section 2.14; provided that (A) upon the effectiveness of such Indebtedness, except in connection with a Limited Condition Transaction (in which case no Specified Event of Default shall have
occurred and is continuing or would result therefrom), no Event of Default has occurred and is continuing or shall result therefrom, (B) such Indebtedness shall not mature prior to the date that is ninety-one (91) days after the Latest
Maturity Date or have a Weighted Average Life to Maturity less than the Weighted Average Life to Maturity of the Revolving Credit Commitments plus ninety-one (91) days; provided that the foregoing requirements of this clause
(B) shall not apply to any Inside Maturity Debt and any Qualifying Bridge Facility and (C) no
Restricted Subsidiary is a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Subsidiary Guarantor which shall have previously or substantially concurrently guaranteed the Obligations (such Indebtedness incurred
pursuant to this clause (p) being referred to as “Incremental Equivalent Debt”) and (ii) any Permitted Refinancing of Indebtedness incurred under the foregoing clause (p)(i);
(q) (x) Cash Management Obligations, (y) Cash Management Obligations (as defined in the Term Loan Credit Agreement) and (z) other
Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case incurred in the ordinary course;
(r) Indebtedness to current or former officers, directors, partners, managers, consultants and employees, their respective estates, spouses or
former spouses to finance the purchase or redemption of Equity Interests of Parent Borrower permitted by Section 7.06 in an aggregate amount not to exceed $3,000,000 at any one time outstanding;
(s) Indebtedness supported by a Letter of Credit in a principal amount not to exceed the face amount of such Letter of Credit;
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(t) obligations in respect of performance, bid, appeal and surety bonds and performance and
completion guarantees and similar obligations provided by the Parent Borrower 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;
(u) Indebtedness permitted to be incurred under clause (u) of
Section 7.01 the Term Loan Credit Agreement (as in effect on the Amendment No. 24 Effective Date);
(v) Bilateral Letters of Credit; provided that, at the time any such Bilateral Letter of Credit is issued, the Borrowers shall be in
compliance with the Financial Covenants in Section 7.11 on a Pro Forma Basis after giving effect to the incurrence of any such Bilateral Letters of Credit permitted pursuant to this clause (v);
(w) Indebtedness consisting of obligations of the Parent Borrower or any of its Restricted Subsidiaries under deferred compensation or other
similar arrangements incurred by such Person in connection with the Permitted Acquisitions or any other Investment expressly permitted hereunder;
(x) Indebtedness representing deferred compensation to employees of the Parent Borrower (or any direct or indirect parent of the Parent
Borrower) and its Restricted Subsidiaries incurred in the ordinary course of business;
(y) Indebtedness incurred by the Parent Borrower or
any of its Restricted Subsidiaries in the Closing Date Transactions, the Transactions and the Amendment No. 4 Transactions, a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case to the extent constituting indemnification obligations or obligations in respect of
purchase price (including earn-outs) or other similar adjustments;
(z) all premiums (if any), interest (including post-petition
interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through
(y) above or clauses (aa) through (cc) below; and
(aa) Indebtedness permitted to be incurred under clause (aa) of Section 7.01 the Term Loan Credit Agreement (as in effect on
the Amendment
No.
24 Effective
Date).;
(bb)
obligations in respect of Disqualified Equity Interests; provided that the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed the greater of (x) $35,000,000 and (y) 10% of Consolidated
EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis; and
(cc)
Indebtedness in respect of Sale Leasebacks; provided that the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed the greater of (x) $35,000,000 and (y) 10% of Consolidated EBITDA of the
Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis; provided further that the Indebtedness incurred pursuant to this clause (cc) may not be incurred in connection with any Liability Management
Transaction.
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Notwithstanding
anything to the contrary in this Agreement, (a) the aggregate principal amount of all Indebtedness for borrowed money incurred pursuant to Section 7.01(a), Section 7.01(h)(B) or Section 7.01(h)(C) that is secured by a Lien on the Collateral that is pari passu with the Liens
securing the Loans shall not, at any one time outstanding, exceed $1,351,000,000 plus, with respect to any Permitted Refinancing thereof (or successive Permitted Refinancings thereof), any increase permitted under clause (a) of the
definition thereof, (b) the aggregate principal amount of all Indebtedness for borrowed money incurred pursuant to Section 7.01(a) or Section 7.01(h)(B), Section 7.01(h)(C) or Section 7.01(h)(D) that is secured by a Lien on
the Collateral that is pari passu with the Liens securing the Loans or the 2026 Second Lien Notes (to the extent then outstanding) shall not, at any one time outstanding, exceed $2,053,000,000 plus, with respect to any Permitted
Refinancing thereof (or successive Permitted Refinancings thereof), any increase permitted under clause (a) of the definition thereof, and (c) the aggregate principal amount of all Indebtedness for borrowed money incurred by Non-Loan
Parties pursuant to Section 2.14(a), Section 7.01(h)(B), Section 7.01(h)(C), Section 7.01(h)(D), Section 7.01(j), Section 7.01(n)(i) (other than Section 7.01(n)(i)(C)) and Section 7.01(p) shall not, at any one
time outstanding, exceed the greater of (x) $35 million and (y) 10.0% of LTM EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis, plus with respect to any Permitted Refinancing
thereof (or successive Permitted Refinancings thereof), any increase permitted under clause (a) of the definition thereof; provided that the Indebtedness described in this clause (c) may not be incurred in connection with any
Liability Management Transaction.
For purposes of determining compliance with
this Section 7.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (aacc) above, the Borrowers may, in their sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include
the amount and type of such Indebtedness in one or more of the above clauses; provided that (xw) all Indebtedness outstanding under the Loan Documents will be deemed
to have been incurred in reliance only on the exception in clause (a) of this Section 7.01, (yx) all Indebtedness under the Indentures outstanding as of the Amendment No. 24 Effective Date will be deemed to have been incurred in reliance only on the exception set forth in clause (h)
of this Section 7.01 on the Amendment No. 24 Effective Date of this Section 7.01 and, (zy) all Indebtedness under the Term Loan Credit Agreement will be deemed to have been incurred in reliance only on the exception set forth in clause (h) of this Section 7.01 on the Amendment No. 2 Effective Date
and (z) all Indebtedness under the Existing Qualified Securitization outstanding as of the Amendment
No. 4 Effective Date will be deemed to have been incurred in reliance only on the exception set forth in clause (f) of this Section 7.01 on the Amendment No. 4 Effective Date. The accrual of interest,
the accretion of accreted value, the amortization of original issue discount 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 7.01.
Section 7.02.
LiensLiens
..
Contract, create, incur, assume or permit to exist any Lien with respect to any of its property, whether now owned or after acquired, except for Permitted Liens.
Section 7.03.
InvestmentsInvestments
. Make any Investments, except:
(a) Investments by the Parent
Borrower or a Restricted Subsidiary in assets that were Cash Equivalents when such Investment was made;
(b) loans or advances to officers,
directors, managers, partners and employees of Parent Borrower and any Borrower or Restricted Subsidiary in an aggregate principal amount outstanding not to exceed $3,000,000;
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(c) asset purchases (including purchases of inventory, supplies and materials) and the
licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(d) Investments (i) by any Loan Party in any other Loan Party, (ii) by any Non-Loan Party in any Loan Party, (iii) by any
Non-Loan Party in any other Non-Loan Party and (iv) by any Loan Party in any Non-Loan Party; provided that the aggregate amount of such Investments
by Loan Parties in Non-Loan Parties pursuant to clause
(iv) shall not exceed in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments),
(A) the greater of (x) $165,000,00050,000,000
and
(y)
25.015.0
% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis (excluding any Investments received in respect of, or consisting of, the transfer or
contribution of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary), plus (B) an amount equal to any
returns of capital or sale proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made); provided that any such amounts
under this clause (B) shall not increase the
Available Amount, it being understood that any returns of capital or sale proceeds actually received in cash in respect of any such Investments in
excess of the amount of such Investment valued at cost at the time such Investment was made shall increase the Available Amount (to the extent such excess amount of returns or proceeds would otherwise increase the Available Amount pursuant to the
definition thereof);;
(e) 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;
(f) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments (other than, in each case, by
reference to this Section 7.03) permitted under Section 7.01, Section 7.02, Section 7.04, Section 7.05 and Section 7.06, respectively;
(g) Investments existing on the Amendment
No.
24 Effective Date (to the extent in excess of $5,000,0002,500,000, set forth on Schedule 7.03(g)) and any modification,
replacement, renewal, reinvestment or extension of any such Investments; provided that the amount of any Investment permitted pursuant to this
Section 7.03(g) is not increased from the amount of
such Investment on the Amendment
No.
24 Effective Date except pursuant to the terms of such Investment as of the Amendment No. 24 Effective Date or as otherwise permitted by this
Section 7.03;
(h) Investments in Swap Contracts permitted under Section 7.01(g);
(i) promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05;
(j) the purchase or other acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line of
business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be (or such assets will be contributed to) a Restricted Subsidiary of the Parent Borrower (including as a result of a merger or
consolidation) (each, a “Permitted Acquisition”) and together with any Investments in Restricted
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Subsidiaries necessary to consummate a transaction otherwise permitted by this clause (j); provided that (i) except in the case of a Limited Condition Transaction (in which
case, compliance with this clause
(ij) shall be determined in accordance with Section 1.09(a)), immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Event of Default shall
have occurred and be continuing, (ii) after giving effect to any such purchase or other acquisition, the Parent Borrower shall be in compliance with the covenants in Section 7.11 and Section 6.15 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 become Collateral and (B) any such newly created or acquired Restricted Subsidiary
(other than an Excluded Subsidiary) shall become Guarantors, in each case in accordance with Section 6.10;
(k)
[reserved];
(l) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade
arrangements with customers consistent with past practices;
(m) Investments (including debt obligations and Equity Interests) received in
connection with the bankruptcy, insolvency 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 upon the foreclosure
with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(n) Investments (as valued at
cost at the time each such Investment is made in the case of Investments made using assets other than cash) and including all related commitments for future Investments, in an amount not exceeding, without duplication, (i) the Available Amount and/or (ii) the Excluded Contribution Amount;
(o) advances of payroll payments to employees in the ordinary course of business;
(p) [reserved];
(q) Investments
held by a Restricted Subsidiary acquired after the Closing Date or of a corporation or company merged into the Parent Borrower or merged 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, amalgamation or consolidation;
(r) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary in respect of leases (other than Capitalized Leases) or of other
obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(s) Investments to the
extent that payment for such Investments is made solely with Qualified Equity Interests (other than any Cure Amount or
any Excluded Contribution Amount);
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(t) other Investments in an aggregate amount, as valued at cost at the time each such
Investment is made and including all related commitments for future Investments, not exceeding (i) the
greater of
(x)
$330,000,00035,000,000
and
(y)
50.010.0
% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis, plus (ii) an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such Investments (which amount shall not
exceed the amount of such Investment valued at cost at the time such Investment was made); provided that any such amounts under this clause
(ii) shall not increase the Available Amount, it being understood that any returns of capital or sale proceeds actually received in cash in respect
of any such Investments in excess of the amount of such Investment valued at cost at the time such Investment was made shall increase the Available Amount (to the extent such excess amount of returns or proceeds would otherwise increase the
Available Amount pursuant to the definition thereof);;
(u)
Investments in JV Entities and Unrestricted Subsidiaries in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments, not exceeding (i) the greater of
(x) $165,000,000 and (y) 25.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis, plus (ii) an amount equal to any returns of capital or sale proceeds actually
received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made); provided that any such amounts under this clause (ii) shall not increase the Available Amount, it being
understood that any returns of capital or sale proceeds actually received in cash in respect of any such Investments in excess of the amount of such Investment valued at cost at the time such Investment was made shall increase the Available Amount
(to the extent such excess amount of returns or proceeds would otherwise increase the Available Amount pursuant to the definition thereof);
(u)
[reserved];
(v) Investments in connection with a Qualified Securitization
Transaction;
(w) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of
creditors in the case of a bankruptcy or insolvency of either the Borrowers or any Restricted Subsidiary;
(x) Investments by an
Unrestricted Subsidiary entered into prior to the day such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”; provided that such Investments were not
incurred in contemplation of such redesignation;
(y) other Investments; provided that, at the time of such Investment, (i) no Specified Event of Default has occurred and is continuing and (ii) the Total Leverage Ratio of the Parent
Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 2.75:1.00; and
(z) Investments utilizing any unused amounts available under Sections 7.06(j) or 7.08(a)(iii)(A).;
and
(aa)
Investments by or in any Captive Insurance Subsidiary in connection with the provision of insurance to the Parent Borrower or any 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 or 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.
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Notwithstanding
anything to the contrary in this Agreement, the aggregate principal amount of (x) all Restricted Payments made by Loan Parties to Non-Loan Parties pursuant to Section 7.06(j) and (y) Investments made by Loan Parties in Non-Loan
Parties pursuant to Section 7.03(d)(iv), Section 7.03(j), Section 7.03(t)(i), and Section 7.03(z) (in each case of the foregoing clauses (x) and (y), excluding Non-Loan Parties that have become Loan Parties) shall not at any
time outstanding exceed the greater of (x) $35,000,000 and (y) 10.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis.
Section 7.04. Fundamental ChangesFundamental
Changes. Merge, amalgamate, 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 or amalgamate with (i) the
Parent Borrower (provided that the resulting entity shall succeed as a matter of law to all of the Obligations of the Parent Borrower), or (ii) any one or more other Restricted Subsidiaries (provided that when any Restricted
Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be a continuing or surviving Person, as applicable, or the resulting entity shall succeed as a matter of law to all of the Obligations
of such Loan Party (including, without limitation, as a Borrower, as applicable));
(b) (i) any Restricted Subsidiary that is not a Loan
Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may change its
legal form, in each case, if the Borrowers determine in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrowers may change
their legal form if they determine in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another
Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party 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 SectionSections 7.02 and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, any Borrower may merge or amalgamate with any other Person (1) in a
transaction in which such Borrower is the continuing or surviving entity of such transaction or (2) in a transaction in which such other Person is the surviving or continuing entity of such transaction (such person, the “Successor
Borrower”); provided that, in the case of this clause (2), (i) such Successor Borrower is organized under the laws of the United States; (ii) such Successor Borrower shall assume the Obligations of such Borrower
under the Loan Documents; (iii) each Guarantor shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents; (iv) each Guarantor shall have by a supplement to the Security
Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (v) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property 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
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thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents[reserved]; (vi) such Borrower shall have delivered information
reasonably requested in writing by the Administrative Agent (or any Lender through the Administrative Agent) reasonably required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations,
including without limitation the USA PATRIOT Act of the type delivered on the Closing Date pursuant to Section 4.01(e) and (vii) such Borrower shall have delivered of an officer’s certificate certifying the compliance with the
foregoing;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any
other Person in order to effect an Investment permitted pursuant to Section 7.03; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall
have complied with the requirements of Section 6.10;
(f) so long as no Default exists or would result therefrom, a merger,
amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected.
Section 7.05.
DispositionsDispositions
. Make any Disposition, except:
(a) Dispositions of obsolete, 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 in the conduct of the business of the Parent Borrower and its Restricted Subsidiaries;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any
applications for registration of any immaterial IP Rights to lapse or go abandoned in the ordinary course of business);
(c) Dispositions
of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase
price of such replacement property (which replacement property is actually promptly purchased);
(d) Dispositions of property to the Parent
Borrower or a Restricted Subsidiary for a bona fide business purpose or in the ordinary course of business or
consistent with past practice; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) to the extent such
transaction constitutes an Investment, such transaction is permitted under Section 7.03, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign
Subsidiary; provided that Dispositions made in reliance on this clause (d) may not be made in connection
with any Liability Management Transaction.;
(e) Dispositions permitted by
Section 7.03, Section 7.04 and Section 7.06 and Liens permitted by Section 7.02 (other than, in each case, by reference to this Section 7.05);
(f) Dispositions in the ordinary course of business of Cash Equivalents;
(g) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the
business of the Parent Borrower and its Restricted Subsidiaries, taken as a whole;
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(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or non-Wholly Owned Restricted Subsidiaries; provided that no Dispositions may
be made pursuant to this Section 7.05(i) to the extent such
JV Entity or non-Wholly Owned Restricted Subsidiary was, prior to a previous Disposition of Equity Interests in such JV Entity or non-Wholly Owned Restricted Subsidiary made pursuant to another provision of this Section 7.05, a Wholly
Owned Restricted Subsidiary, and such Dispositions pursuant to such other provision of this Section 7.05 and this Section 7.05(i) were part of a single Disposition or series of related Disposition, other than to the
extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of such non-Wholly Owned Restricted Subsidiary set forth in the shareholders agreements, joint venture agreements,
organizational documents or similar binding agreements relating to such JV Entity or non-Wholly Owned Restricted Subsidiary.; provided, that Dispositions made in reliance on this clause (i) may not be made in connection with any Liability
Management Transaction;
(j) Dispositions of accounts receivable in the
ordinary course of business in connection with the collection or compromise thereof or pursuant to factoring arrangements, in each case to the extent not constituting a receivables financing;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Dispositions not otherwise permitted pursuant to this Section 7.05; provided that (i) such Disposition shall be for
fair market value as reasonably determined by the Parent Borrower in good faith and (ii) the Parent Borrower or the applicable Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents
(provided, however, that for the purposes of this sub-clause the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Parent
Borrower or any of its Restricted Subsidiaries (other than Subordinated Debt) and the valid release of the Parent Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other
liability in connection with such Disposition, (B) securities, notes or other obligations received by the Parent Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Parent Borrower or any of its
Restricted Subsidiaries into cash or Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Subordinated Debt) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result
of such Disposition, to the extent that the Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) the aggregate Designated Non-Cash
Consideration received by the Parent Borrower and its Restricted Subsidiaries for all Dispositions under this clause (l) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such
Designated Non-Cash Consideration is received) not to exceed the greater of (x) $100,000,00035,000,000 and (y) 15.010.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period at any time outstanding (net of any Designated Non-Cash Consideration converted into cash and Cash Equivalents received in
respect of any such Designated Non-Cash Consideration and calculated on a Pro Forma Basis);
(m) the Parent Borrower and its
Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business;
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(n) Dispositions of non-core or obsolete assets, or other dispositions required by
applicable law, acquired in connection with Permitted Acquisitions;
(o) any swap of assets in exchange for services or other assets in the
ordinary course of business of comparable or greater fair market value of usefulness to the business of the Parent Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Parent Borrower;
(p) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary so long as the primary assets of such
Unrestricted Subsidiary are not cash or Cash Equivalents;
(q) [reserved]; and
(r) Dispositions for Cash Equivalents (other than in connection with the capitalization of any special purpose entity used to effect any such
Qualified Securitization Transaction) of Receivables and Receivables Related Assets in connection with any Qualified Securitization Transaction.; and
(s) Sale
Leasebacks having an aggregate fair market value (determined as of the closing of the applicable Disposition) not to exceed the greater of (x) $35,000,000 and (y) 10.0% of Consolidated EBITDA of the Parent Borrower for the most recently
ended Test Period calculated on a Pro Forma Basis at any time outstanding; provided that Sale Leasebacks made in reliance on this clause (s) may not be made in connection with any Liability Management Transaction.
To the extent any Collateral is disposed of as expressly permitted by this
Section 7.05 to any Person other than the Borrowers or any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the
certification by the Parent Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect
the foregoing.
Section 7.06.
Restricted PaymentsRestricted
Payments. Declare or make any Restricted Payment, except:
(a) each Restricted Subsidiary may make Restricted
Payments to the Parent Borrower and to other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Parent Borrower and any other Restricted Subsidiary and to each other owner of Equity
Interests of such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b) (i)
the Parent Borrower may (or may make Restricted Payments to permit any direct or indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to
acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole,
contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parent Borrower may declare and make dividend payments or other distributions
payable solely in Qualified Equity Interests (to the extent not utilized in connection with any other transactions permitted pursuant to Section 7.01, Section 7.03, Section 7.06 or Section 7.08 (or to
build the Available Amount or Excluded Contribution Amount));
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(c)
(i) to pay any franchise, excise and similar taxes and other fees and expenses required of the Parent Borrower and/or any of its Subsidiaries
to maintain their corporate or other legal existence;
(ii) for any taxable period in which Parent Borrower and/or any of its Subsidiaries
is a member of a consolidated, combined or similar income tax group for U.S. federal or applicable foreign, state or local income tax purposes of which a parent entity of any Borrower is the common parent (a “Tax Group”), to pay
any U.S. federal, foreign, state and local income taxes of such Tax Group for such taxable period that are attributable to the taxable income of the Borrowers and/or their 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 that the Borrowers and their Subsidiaries would have been required to pay as a stand-alone Tax Group; and
(iii)
Restricted Payments not to exceed the greater of (x) $10,000,000 and (y) 2.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis per calendar year; provided that, at the
time of such Restricted Payment, no Event of Default has occurred and is continuing
(d) to the extent constituting Restricted Payments, the Parent Borrower and its Restricted Subsidiaries may enter into and consummate (i) transactions expressly permitted by any provision of
Section 7.03, Section 7.04 or Section 7.07 (other than, in each case, by reference to this
Section 7.06) or (ii) the Amendment No. 4 Transactions;
(e) repurchases of Equity Interests in the ordinary course of business in the Parent Borrower
(or any direct or indirect parent thereof) or any Restricted Subsidiary 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;
(f) the Parent Borrower or any Restricted Subsidiary may, in good faith, pay for the repurchase, retirement or other acquisition or retirement
for value of Equity Interests of it held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other Immediate Family Members, successors, executors, administrators, heirs,
legatees or distributees of any of the foregoing) of the Parent Borrower or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other
employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, manager, officer or consultant of the Parent Borrower or any Subsidiary; provided
that such payments do not to exceed $10,000,000 in any calendar year; provided that any unused portion of the preceding basket for the two preceding calendar
years may be carried forward to succeeding calendar years;further that, at the time of such Restricted
Payment, no Event of Default has occurred and is continuing;
(g) [reserved];
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(h) the Parent Borrower or any Restricted Subsidiary may pay any dividend or distribution
within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being understood that a distribution pursuant to this Section 7.06(h) shall be deemed to have utilized capacity under
such other provision of this Agreement);
(i) the Parent Borrower or any Restricted Subsidiary may (a) pay cash in lieu of
fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b) 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;
(j) the
Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed the greater of (x) $130,000,00035,000,000 and (y) 20.010.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis; provided that, at the time of such Restricted Payment, no Event of Default has occurred and is
continuing;
(k) the Parent Borrower or any Restricted Subsidiary may make
additional Restricted Payments in an amount not to exceed, without duplication, (i) the Available Amount and/or (ii) the Excluded Contribution Amount; provided that at the time of any such Restricted Payment in reliance on the
Available Amount, (A) no Specified Event of Default shall have occurred and be continuing or would result therefrom and (B) the Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a Pro
Forma Basis, would be no greater than 3.00:1.00;
(l) the declaration and
payment by the Parent Borrower of Restricted Payments in an aggregate amount not to exceed for any calendar year, (i) 6.00% of the Market Capitalization of the Parent Borrower plus (ii) 6.00% of the Net Cash Proceeds received by
(or contributed to) the Parent Borrower from the issuance of Qualified Equity Interests of the Parent Borrower after the Closing
Date;; provided that, at the time of such Restricted Payment, no Event of Default has occurred and is
continuing;
(m) the distribution, by dividend or otherwise, of Equity Interests or Indebtedness owed to the Parent Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a
Restricted Subsidiary that owns an Unrestricted Subsidiary; provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary), in each case, so
long as the primary assets of such Unrestricted Subsidiary are not cash or cash equivalents;
and[reserved]; and
(n) the Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such
Restricted Payment, (i) no Specified Event of Default has occurred and is continuing and (ii) the
Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 2.50:1.00.
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Section 7.07. Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of the Parent Borrower with a fair market value in excess of $12,500,000, whether or not in the ordinary course of business, other than:
(a) transactions between or among the Parent Borrower or any Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a
result of such transaction;
(b) transactions on terms not less favorable to the Parent Borrower or such Restricted Subsidiary as would be
obtainable by the Parent Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate;
(c) the Closing Date Transactions, the Transactions and in
each casethe Amendment No. 4 Transactions and
the payment of fees and expenses related
theretoto the
Closing Date Transactions, the Transactions and the Amendment No. 4 Transactions;
(d) the issuance of Equity Interests to any officer, director, manager, employee or consultant of the Parent Borrower or any of its
Subsidiaries or any direct or indirect parent of the Parent Borrower in connection with the Closing Date Transactions and the Transactions;
(e) transactions relating to a Qualified Securitization Transaction;
(f) equity issuances, repurchases, redemptions, retirements or other acquisitions or retirements of Equity Interests by the Parent Borrower or
any Restricted Subsidiary permitted under Section 7.06;
(g) loans and other transactions by and among the Parent Borrower
and/or one or more Subsidiaries to the extent permitted under this Article VII;
(h) employment and severance arrangements between
the Parent Borrower or any of its 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;
(i) [reserved];
(j) 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 Parent Borrower and its Restricted Subsidiaries in the ordinary course of business;
(k) transactions pursuant to agreements in existence on the Amendment No. 24 Effective Date and set forth on Schedule 7.07 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect;
(l) dividends and other distributions permitted under Section 7.06;
(m) [reserved];
(n) transactions
entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”; provided that such
transactions were not entered into in contemplation of such redesignation; and
(o) Dispositions for Cash Equivalents (other than in
connection with the capitalization of any special purpose entity used to effect any such Qualified Securitization Transaction) of Receivables and Receivables Related Assets in connection with any Qualified Securitization Transaction.
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Section 7.08. Prepayments, Etc., of Indebtedness..
(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner any
SubordinatedRestricted
Debt (it being understood that payments of regularly scheduled interest, regularly scheduled principal, AHYDO Payments and mandatory prepayments under any such
SubordinatedRestricted Debt Documents shall not be
prohibited by this clause), except for (i) the refinancing thereof with, or the exchange thereof for, of any Indebtedness (to the extent such Indebtedness constitutes a Permitted Refinancing), (ii) the conversion thereof to Equity
Interests (other than Disqualified Equity Interests) of the Parent Borrower or any of its direct or indirect parents, (iii) prepayments, redemptions, purchases, defeasances and other payments thereof prior to their scheduled maturity in an
aggregate amount not to exceed (A) the greater of (x) $130,000,000 and (y) 20.0% of Consolidated EBITDA of the Parent Borrower for the most
recently ended Test Period calculated on a Pro Forma Basis, plus (B) the Available Amount, (provided that at the time of any such prepayment, redemption, purchase, defeasance and other payment in reliance on clause (b) of the definition of “Available Amount”,
(A) no Specified Event of Default shall have occurred and be continuing or would result therefrom and (B) the Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be
no greater than 3.00:1.00 excluding any such prepayment, redemption, purchase, defeasance and other payment made in reliance on clause (a) of the definition of “Available Amount”), plus (C) without duplication,[reserved], plus (B) [reserved], plus (C) the Excluded Contribution Amount (provided that at the time of any such prepayment, redemption, purchase, defeasance and other payment in reliance on the definition of “Excluded Contribution
Amount,”,
no Specified Event of Default shall have occurred and be continuing or would result therefrom), (iv) payments and prepayments utilizing amounts otherwise available pursuant to
Section 7.06, and (v) other prepayments, redemptions, purchases, defeasances and
other payments thereof prior to their scheduled maturity (provided that, at the time of such prepayments, redemptions, purchases, defeasances or other payments, (x) no Specified Event of Default has occurred and is continuing and (y) the Total Leverage Ratio of the Parent
Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 2.50:1.00)., (vi) any prepayment, redemption, purchase, defeasance and other payment of Senior Notes made (A) for cash (other
than with the proceeds of an Equity Offering) at a purchase price not to exceed, (x) with respect to the 2021 Indenture Notes, 75.0% of the principal amount thereof or (y) with respect to the 2022 Indenture Notes, 77.0% of the principal
amount thereof, in each case, plus accrued and unpaid interest, (B) in exchange for Indebtedness incurred pursuant to Section 7.01(h)(E) at a purchase price not to exceed, (x) with respect to the 2021 Indenture Notes, 83.5% of the
principal amount thereof or (y) with respect to the 2022 Indenture Notes, 84.5% of the principal amount thereof, in each case, plus accrued and unpaid interest; provided that, for the avoidance of doubt, any such accrued and unpaid interest in
the case of the foregoing clause (B) may be paid in cash, or (C) with the proceeds of an Equity Offering, for cash at a purchase price not to exceed the principal amount thereof, plus accrued and unpaid interest, (vii) other
prepayments, repurchases, exchanges, redemptions, defeasances, discharges or other acquisitions or retirements of Restricted Debt in anticipation of satisfying a sinking fund obligation, principal installment, or final maturity due within one year
of the date of prepayment, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement, (viii) any prepayment, purchase, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement
of Restricted Debt to the extent required by the agreement governing such Restricted Debt, following the occurrence of a Disposition (or other similar event described therein as an
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“asset disposition” or “asset sale”), but
only if the Parent Borrower shall have first complied with Section 2.05(b)(ii), and prepaid all Revolving Credit Loans required thereby, prior to purchasing, repurchasing, redeeming, defeasing or otherwise acquiring or retiring such Restricted
Debt and (ix) in connection with the Amendment No. 4 Transactions; provided that, in the case of the foregoing clause (vi)(A), clause (vi)(C) and clause (vii), with respect to payments in cash of Restricted Debt described in clause
(d) of the definition thereof, Liquidity is not less than $100,000,000 on a Pro Forma Basis for such payment (measured as of 5:00 p.m. on the date of such prepayment, repurchase, exchange, redemption, defeasance, discharge or other acquisition
or retirement, pursuant to such clause) and, substantially concurrently therewith, the Parent Borrower shall deliver a Liquidity Certificate to the Administrative Agent certifying that the conditions set forth in this proviso were met.
(b) Amend, modify or change in any manner materially adverse to the interests of the Lenders
any term or condition of any Subordinated Debt Documents without the consent of the Required Lenders (not to be unreasonably withheld or delayed).
Section 7.09.
[Reserved]..
Section 7.10. Subsidiary
DistributionsSubsidiary Distributions. Enter into any agreement, instrument, deed or
lease which prohibits or limits the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests; provided that the foregoing shall not apply to:
(a) restrictions and conditions imposed by (A) law or (B) any Loan Document;
(b) restrictions and conditions existing on the Amendment
No.
24 Effective Date (including the Indentures or the Term Loan Credit agreementAgreement) or to any extension, renewal, amendment, modification or
replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) customary restrictions and conditions arising in connection with any Disposition permitted by Section 7.05;
(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies
only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any
Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted
Subsidiary and the restriction or condition set forth in such agreement does not apply to the Parent Borrower or any other Restricted Subsidiary;
(g) any restrictions or conditions in any Indebtedness permitted pursuant to Section 7.01 to the extent such restrictions or
conditions are no more restrictive than the restrictions and conditions in the Loan Documents or, in the case of Subordinated Debt, are market terms at the time of issuance or, in the case of Indebtedness of any Non-Loan Party, are imposed solely on
such Non-Loan Party and its Subsidiaries; provided that any such restrictions or conditions permit compliance with the Collateral and Guarantee Requirement and Section 6.10;
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(h) any restrictions on cash or other deposits imposed by agreements entered into in the
ordinary course of business;
(i) customary provisions in shareholders agreements, joint venture agreements, organizational documents or
similar binding agreements relating to any JV Entity or non-Wholly Owned Restricted Subsidiary and other similar agreements applicable to JV Entities and non-Wholly Owned Restricted Subsidiaries permitted under Section 7.03 and
applicable solely to such JV Entity or non-Wholly Owned Restricted Subsidiary and the Equity Interests issued thereby;
provided, that such agreement made in reliance on this clause (i) may not be made in connection with any Liability Management Transaction;
(j) customary restrictions in leases, subleases, licenses or asset sale agreements and other similar contracts otherwise permitted hereby so
long as such restrictions relate only to the assets subject thereto;
(k) customary provisions restricting assignment of any agreement
entered into in the ordinary course of business;
(l) customary net worth provisions contained in real property leases entered into by
Subsidiaries of the Parent Borrower, so long as the Parent Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Parent Borrower and its Subsidiaries to meet their ongoing
obligation; and
(m) restrictions imposed by any agreement governing Indebtedness entered into on or after the Closing Date and permitted
under Section 7.01.
Section 7.11. Financial Covenants..
(a) Total Leverage Covenant Ratio. As of the last day of (i) each fiscal
quarter of the Parent Borrower beginning with the fiscal quarter ending June 30, 20222026 until the fiscal quarter ending MarchDecember 31,
20242027
, the Parent Borrower shall cause the Total Leverage Covenant
Ratio to be less than or equal to 5.005.50:1.00 and (ii) each fiscal quarter of the Parent Borrower
ending after
MarchDecember
31,
20242027
, the Parent Borrower shall cause the Total Leverage Covenant
Ratio to be less than or equal to 4.50:1.00. Notwithstanding the foregoing, commencing with the fiscal quarter of the Parent Borrower ending June 30March
31,
20242028
, at the election of the Parent Borrower (the notice of which election shall be given within thirty (30) days after consummating the relevant Qualified Acquisition), the applicable level set forth in
clause (ii) above shall be increased to 5.00:1.00 in connection with a Qualified Acquisition for four consecutive Test Periods (and no other Test Periods), starting with the Test Period in which such Qualified Acquisition is consummated
(a “Qualified Acquisition Election”). Upon the return to a Total Leverage Ratio of 4.50:1.00 after any Qualified Acquisition Election, such level must be maintained for at least two Test Periods before the Parent Borrower may
elect to increase such level for a subsequent time pursuant to any Qualified Acquisition Election.
(b) Consolidated Interest
Covenant Coverage Ratio. As of the end of each fiscal
quarter of the Parent Borrower, the Parent Borrower and the Borrowers shall cause the Consolidated Interest
Covenant Coverage Ratio to be greater than or equal to
2.00:1.00.
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Section
7.12. Liability Management Transactions. Consummate a Liability Management Transaction.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Any of the following events referred to in any of clauses (a) through (lj) inclusive of this Section 8.01 shall constitute 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 any other amount payable hereunder or with respect to any other Loan Document; or
(b) Specific Covenants. The Parent Borrower fails to perform or observe any term, covenant or agreement contained in any of
Section 6.03(a) or Section 6.04 (solely with respect to the Parent Borrower), Section 6.12(b) or Article VII; provided (i) an Event of Default arising from a failure to comply with
Section 6.03(a) shall be deemed to be no longer continuing automatically upon and simultaneously with the underlying Default ceasing to be continuing so long as the Parent Borrower has provided notice to the Administrative Agent promptly
after a Responsible Officer obtains knowledge of such underlying Default, (ii) that a Default or an Event of Default in respect of Section 7.11 (a “Financial Covenant Event of Default”) shall not occur until the
start of the tenth (10th) Business Day subsequent to the date the financial statements for the applicable fiscal quarter or fiscal year are required to be delivered pursuant to Section 6.01(a) or 6.01(b), and then shall occur
only if the Cure Amount has not been received after the end of such fiscal quarter or on or prior to such date; or
(c) Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 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 the earlier of (x) knowledge thereof by a Responsible Officer or (y) receipt by the Borrowers of written notice thereof by the Administrative Agent or the Required Lenders; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf
of any Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made and such incorrect or misleading
representation, warranty, certification or statement of fact, if capable of being cured, remains so incorrect or misleading for thirty (30) days after the earlier of (x) knowledge thereof by a Responsible Officer or (y) receipt by the
Borrowers of written notice thereof by the Administrative Agent or the Required Lenders; or
(e) Cross-Default. Any Loan Party 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 Indebtedness hereunder) having an aggregate principal amount exceeding the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness, or any other event occurs (other
than (i) with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap Contracts and (ii) any event requiring prepayment pursuant to customary asset sale events,
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insurance and condemnation proceeds events, change of control offers events and excess cash flow and indebtedness sweeps), 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, all 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 all such Indebtedness to be made, prior to its stated maturity; provided that this clause (e))(B) shall not apply to secured Indebtedness that becomes due (or requires an offer to purchase) 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; provided, further, that (x) such failure or breach is unremedied and is not waived by the required holders of such Indebtedness and
(y) for the avoidance of doubt, any event or condition set forth under this paragraph (e) shall not, until the expiration of any applicable grace period or the delivery of notice by the applicable holder or holders of such
Indebtedness, constitute a Default or an Event of Default for purposes of this Agreement; or
(f) Insolvency Proceedings,
Etc. Any Loan Party or any of the Restricted Subsidiaries 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, interim receiver, receiver and manager, 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,
interim receiver, receiver and manager, 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 Party 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) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period
of sixty (60) consecutive days; or
(i) Invalidity of Collateral Documents. Any material provision of any Collateral 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 Section 7.04 or Section 7.05) or solely as a
result of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full of all the Obligations, ceases to be in full force and effect or ceases to create a valid and perfected lien, with the priority set forth in the
Collateral and Guarantee Requirement, on a material portion of the Collateral covered thereby; or any Loan Party contests in writing the validity or enforceability of any material provision of any Collateral Document; or any Loan Party denies in
writing that it has any or further liability or obligation under any Collateral 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
Collateral Document; or
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(j) Invalidity of Guarantees. Any Guarantee, after its execution and delivery,
provided by any Guarantor that is a Material Subsidiary, or any material provision thereof, ceases to be in full force and effect (other than pursuant to the terms hereof or thereof) or any Loan Party denies or disaffirms in writing any such
Guarantor’s material obligations under its Guarantee (other than as a result of repayment in full of the Obligations and terminations of the Commitments); or
(k) Change of Control. There occurs any Change of Control; or
(l) ERISA. (i) An ERISA Event or similar event with respect to a Foreign Plan occurs which, individually or together with other
similar events which have occurred, has resulted or could reasonably be expected to result in a Material Adverse Effect, or (ii) a Loan Party 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 the remaining balance of which could reasonably be expected to result in a Material Adverse Effect.
Section 8.02. Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent, at the
request of the Required Lenders, shall take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans
and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) 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 Borrowers;
(c) require that the Borrowers Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) 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 subject, in each case, to the terms of the Pari Passu First Lien Intercreditor Agreement, the Junior Lien
Intercreditor Agreement and any other Acceptable Intercreditor Agreement then in effect;
provided that upon the occurrence of an Event of Default under Section 8.01(f) or (g) with respect to any Borrower, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer 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 Borrowers 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.
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Section 8.03. Exclusion of Immaterial Subsidiaries. Solely for the purpose of
determining whether a Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Subsidiary that is
an Immaterial Subsidiary or at such time could, upon designation by the Parent Borrower, become an Immaterial Subsidiary affected by any event or circumstances referred to in any such clause unless the Consolidated EBITDA of such Subsidiary together
with the Consolidated EBITDA of all other Subsidiaries affected by such event or circumstance referred to in such clause, shall exceed 7.5% of the Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries.
Section 8.04. Application of Funds. If the circumstances described in Section 2.12(g) have occurred, or 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), including in any bankruptcy or insolvency proceeding, any amounts received on account of the Obligations shall be applied by the Administrative Agent, subject to the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement then in effect, in the following order:
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 each 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 (including, but not limited to,
post-petition interest), ratably among the Lenders 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, Unreimbursed Amounts, face amounts of
the L/C Borrowings, Swap Termination Value under Secured Hedge Agreements, Cash Management Obligations and all Bilateral Letter of Credit Obligations, ratably among the Secured Parties in proportion to the respective amounts described in this
clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
Sixth, to the payment of all other
Obligations of the Loan Parties 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
Borrowers or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth 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 Borrowers.
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Notwithstanding the foregoing, Bilateral Letter of Credit Obligations shall be excluded from
the application described above if the Collateral Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Collateral Agent may request, from the applicable Bilateral Letter of Credit Bank. Each
Bilateral Letter of Credit Bank not a party to this Credit Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Collateral Agent pursuant
to, and be bound by, the terms of Article IX, for itself and its Affiliates as if a “Lender” party hereto.
Section 8.05. Right to
Cure..
(a) Notwithstanding anything to the contrary contained in
Section 8.01(b), in the event that the Parent Borrower fails to comply with the requirement of the Financial Covenants as of the last day of the Test Period, the Parent Borrower shall have the right, during the period beginning at the
start of any fiscal quarter in which the Parent Borrower determines that a breach of the Financial Covenants may occur, until the expiration of the tenth Business Day (the “Cure Period”) after the date on which financial
statements with respect to the Test Period in which the Financial Covenants are being measured are required to be delivered pursuant to Section 6.01, to issue common Equity Interests (or other Qualified Equity Interests or Subordinated
Debt on terms reasonably acceptable to the Administrative Agent) for net cash proceeds (the “Cure Right”), and upon the receipt by the Parent Borrower of net cash proceeds pursuant to the exercise of the Cure Right (the
“Cure Amount”), the Financial Covenants shall be recalculated, giving effect to a pro forma increase to Consolidated
Covenant EBITDA for such Test Period in an amount equal to such
Cure Amount; provided that such pro forma adjustment to Consolidated Covenant EBITDA shall be given solely for the purpose of determining the existence of a Default or an Event of Default under the Financial Covenants with respect to any Test Period that includes the fiscal quarter for
which such Cure Right was exercised and not for any other purpose under any Loan Document (including for purposes of determining pricing, mandatory prepayments and the availability or amount permitted pursuant to any covenant under Article
VIIVIII
).
(b) If, after the exercise of the Cure Right and the recalculations
pursuant to clause (a) above, the Parent Borrower shall then be in compliance with the requirements of the Financial Covenants during such Test Period (including for purposes of Section 4.02), the Parent Borrower shall be
deemed to have satisfied the requirements of the Financial Covenants as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable Default or Event of Default
under Section 8.01 that had occurred shall be deemed cured; provided that (i) the Cure Right may be exercised on no more than five
(5) occasions on and after the Amendment No. 4 Effective Date, (ii) in each four consecutive fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Cure Right is exercised, (iii) with respect to any exercise of the Cure Right,
the Cure Amount shall not be given effect in an amount greater than the amount required to cause the Parent Borrower to be in compliance with the Financial Covenants (such amount, the “Necessary Cure Amount”) (provided that
if the Cure Right is exercised prior to the date financial statements are required to be delivered for such fiscal quarter then the Cure Amount shall be equal to the amount reasonably determined by the Parent Borrower in good faith that is required
for purposes of complying with the Financial Covenants for such fiscal quarter (such amount, the “Expected Cure Amount”) and (iv) the net cash proceeds from the Cure Right may not reduce the amount of Consolidated Total Debt
for purposes of calculating compliance with the Financial Covenants for the fiscal quarter with respect to such Cure Right was made.
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(c) Notwithstanding anything herein to the contrary, (A) to the extent that the
Expected Cure Amount is (i) greater than the Necessary Cure Amount, then such difference may be used for the purposes of determining any baskets (other than any previously contributed Cure Amounts), with respect to the covenants contained in
the Loan Documents and (ii) less than the Necessary Cure Amount, then not later than the expiration of the applicable Cure Period, the Borrowers must receive a direct or indirect equity investment in cash in the form of common Equity
Interests (or other Qualified Equity Interests or Subordinated Debt on terms reasonably acceptable to the Administrative Agent), which cash proceeds received by Borrowers shall be equal to the shortfall between such Expected Cure Amount and such
Necessary Cure Amount and (B) prior to the expiration of the Cure Period (x) the Lenders shall not be permitted to exercise any rights then available as a result of an Event of Default under Section 8.01(b) on the basis of a
breach of the Financial Covenants so as to enable the Borrowers to consummate their Cure Rights as permitted under this Section 8.05 and (y) the Lenders shall not be required to make any Credit Extension unless and until the
Borrowers have received the Cure Amount required to cause the Parent Borrower to be in compliance with the Financial Covenants.
ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01. Appointment and Authorization of
Agents..
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative 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. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or
responsibilities, except those expressly set forth herein, nor shall the Administrative 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. 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 Person” 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.
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(c) The Administrative Agent shall also act as the “collateral agent” under the
Loan Documents, and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), L/C Issuer (if applicable), a potential Hedge Bank or Cash Management Bank or a Bilateral Letter of Credit Bank) hereby irrevocably appoints
and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien created by the Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and
enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as
“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 Administrative 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. Without limiting the generality of the
foregoing, the Lenders hereby expressly authorize the Administrative 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 the Loan Documents and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders.
Section 9.02. Delegation of Duties. The Administrative 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 Affiliates, agents, employees or
attorneys-in-fact, such sub-agents as shall be deemed necessary by the Administrative Agent, and shall be entitled to advice of counsel, both internal and external, and other consultants or experts concerning all matters pertaining to such duties.
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.
Section 9.03. Liability of Agents. No Agent-Related Person shall (a) be liable to any Lender 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, including their respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent (except for its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set
forth herein), (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 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, or the validity, perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, the value or sufficiency of any
Collateral or the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or for any failure of any Loan Party or any
other party to any Loan Document to perform its obligations hereunder or thereunder or (c) 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; further, without limiting the generality of the foregoing clause (c), no Agent-Related Person shall (x) be obligated to ascertain, monitor or inquire as to whether any
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Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) 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. No Agent-Related Person shall be under any obligation to any Lender or participant 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. No 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 such Agent 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 such Agent shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent to liability or that is
contrary to any Loan Document or applicable Law. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), or in the absence of its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its
duties expressly set forth herein.
Section 9.04. Reliance by Agents..
(a) Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice, request, consent, certificate, instrument, 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 and shall not incur any liability for relying thereon. 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.
(b) For purposes of determining compliance with the conditions specified in 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.
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 Borrowers referring to this Agreement, describing such Default and stating that such notice is a
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“notice of default.” The Administrative Agent will notify the Lenders of its receipt of any such notice. Subject to the other provisions of this Article IX, the Administrative
Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders 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 an investigation into the business, prospects, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their respective 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 Borrowers and the other Loan Parties 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 Borrowers and the other 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 respective 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), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it in its capacity as an Agent-Related Person; 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 and 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. 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 the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in
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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 is not
reimbursed for such expenses by or on behalf of the Borrowers, provided that such reimbursement by the Lenders shall not affect the Borrowers’ continuing reimbursement obligations with respect thereto, if any. 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.
Section 9.08. Agents in their Individual Capacities. Bank of America and its 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 each of the Loan Parties and their respective Affiliates as though Bank
of America were not the Administrative Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding any Loan Party or
any Affiliate of a Loan Party (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank of America 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, and the terms
“Lender” and “Lenders” include Bank of America in its individual capacity.
Section 9.09. Successor AgentsSuccessor Agents. The
Administrative Agent may resign as the Administrative Agent and Collateral Agent upon thirty (30) days’ notice to the Lenders and the Borrowers. If the Administrative Agent resigns under this Agreement, the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which appointment of a successor agent shall require the consent of the Borrowers at all times other than during the existence of an Event of Default under Section 8.01(f) or
(g) (which consent of the Borrowers shall not be unreasonably withheld or delayed). If, at the time that the Administrative Agent’s resignation is effective, it is acting as an L/C Issuer or the Swing Line Lender, such resignation
shall also operate to effectuate its resignation as L/C Issuer or the Swing Line Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters of Credit or to make Swing Line Loans. If no successor agent is
appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Borrowers, a successor agent from among the Lenders. 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 and Collateral Agent and the term “Administrative Agent” shall
mean such successor administrative agent and/or supplemental administrative agent, as the case may be (and the term “Collateral Agent” shall mean such successor collateral agent, as described in this Section 9.09 and/or
supplemental agent, as described in Section 9.02), and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent and Collateral Agent shall be terminated. After the retiring Administrative
Agent’s resignation hereunder as the Administrative Agent and Collateral Agent, the provisions of this Article IX and Section 10.04 and Section 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 and Collateral Agent under this Agreement. If no successor agent has accepted appointment as the Administrative Agent and Collateral Agent by the date which is thirty (30) days following
the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent and
Collateral Agent hereunder until such time, if any, as the Required
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Lenders appoint a successor agent as provided for above (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders under any of the Loan Documents,
the retiring Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed). Upon the acceptance of any appointment as the Administrative Agent and Collateral Agent hereunder by a
successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably 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 the Collateral and Guarantee Requirement is satisfied, the Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent and Collateral Agent, and the retiring Administrative Agent and Collateral Agent shall, to the extent not previously discharged, be discharged from its duties and obligations
under the Loan Documents.
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 any
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 Borrowers) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect
of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.04(e),
Section 2.09 and Section 10.04) 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
(c) any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due to the
Administrative Agent under Section 2.09 and Section 10.04.
The Secured Parties hereby irrevocably authorize the
Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of
foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including
under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar Laws in any other jurisdictions to which a Loan Party is subject,
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(b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial
action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations
with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent
claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with
any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any
actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders,
irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (g) of Section 10.01), (iii) the
Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests
and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent
that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the
amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the
Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
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. The Lenders (including in their capacity as a potential Bilateral Letter of Credit
Bank) irrevocably agree:
(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 in respect of any Secured Hedge Agreements not yet due and payable,
(y) Cash Management Obligations not yet due and payable and (z) contingent indemnification obligations and other contingent obligations not yet accrued and payable) and the expiration or termination of all Letters of Credit (other than
Letters of Credit that have been Cash Collateralized or back-stopped to the reasonable satisfaction of the applicable L/C Issuer), (ii) at the time the property subject to such Lien is transferred or to be transferred as part of or in
connection with any transfer permitted hereunder or under any other Loan Document to any Person other than any other Loan Party, (iii) subject to Section 10.01, if the release of such Lien is approved, authorized or ratified in
writing by the Required Lenders, (iv) if the property subject to such Lien is owned by a Loan Party, upon release of such Loan Party from its obligations under its Guaranty pursuant to clause (c) or (d)
below or (v) if the property subject to such Lien becomes Excluded Property;
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(b) the Administrative Agent is authorized to 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 clauses (gi) and
(hdd
) of the definition of “Permitted Liens”;
(c) if any
Subsidiary Guarantor or Borrower (other than the Parent Borrower) ceases to be a Restricted Subsidiary, or becomes an Excluded Subsidiary, in each case as a result of a transaction or designation permitted hereunder (as certified in writing
delivered to the Administrative Agent by a Responsible Officer of the Parent Borrower), (x) such Subsidiary shall be automatically released from its obligations under the Guaranty and all other Loan Documents and (y) any Liens granted by
such Subsidiary or Liens on the Equity Interests of such Subsidiary (to the extent such Equity Interests have become Excluded Property or are being transferred to a Person that is not a Loan Party) shall be automatically released; provided
that no such automatic release shall occur if (w) such transaction or designation is in connection with any
Liability Management Transaction, (x) such Subsidiary Guarantor or Borrower (other than the Parent Borrower) continues to be a guarantor or co-borrower, as applicable, in respect of any
Incremental Equivalent Debt or any other Indebtedness of a Loan Party, in each case, with an aggregate outstanding principal amount in excess of the Threshold Amount or, (y) such Subsidiary Guarantor or Borrower (other than the Parent
Borrower) becomes an Excluded Subsidiary solely under clause (h) of the definition of “Excluded Subsidiary” unless in connection with a bona fide Disposition of the Equity Interests of such Subsidiary Guarantor or Borrower
(other than the Parent Borrower) to a Person that is not a Loan Party or an Affiliate of a Loan Party that is permitted hereunder; and, or (z) such Subsidiary Guarantor or Borrower (other than the Parent Borrower) becomes an Excluded Subsidiary solely
under clause (k) of the definition of “Excluded Subsidiary” unless in connection with a bona fide Disposition of the Equity Interests of such Subsidiary Guarantor or Borrower (other than the Parent Borrower) to a Foreign Subsidiary
that is permitted hereunder; and
(d) [reserved].
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority
to release or subordinate its interest in particular types or items of property, or to release any Loan Party (other than the Parent Borrower) from its obligations under the Guaranty and all other Loan Documents pursuant to this
Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent will promptly (and each Lender irrevocably authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party 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 Loan Party (other than the Parent Borrower) from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11. Prior to releasing or subordinating
its interest in particular types or items of property, or to release any Loan Party (other than the Parent Borrower) from its obligations under the Guaranty and all other Loan Documents pursuant to this Section 9.11, the Administrative
Agent and/or the Collateral Agent shall be entitled to receive a certificate of a Responsible Officer of the Parent Borrower stating that such actions are permitted under this Agreement. Neither the Administrative Agent nor the Collateral Agent
shall be liable for any such release undertaken in reliance upon any such certificate of a Responsible Officer of the Parent Borrower.
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The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other
Person to assure that the Collateral exists or is owned by any Loan Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or
available to the Collateral Agent in this Section 9.11 or in any of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act
in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except
for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Section 9.12. Other Agents; Arrangers and Managers. None of the Lenders, the Agents, the Lead Arrangers or other Persons
identified on the facing page or signature pages of this Agreement as a “joint lead arranger and bookrunner” or “co-arranger” 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. Appointment of Supplemental Administrative 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 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 is hereby authorized to appoint an additional individual or
institution selected by the Administrative 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 Administrative Agent” and, collectively, as “Supplemental Administrative Agents”).
(b) In the event that the Administrative Agent appoints a Supplemental Administrative 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 Administrative Agent with respect to such Collateral shall be exercisable by and vest
in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative 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
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performance thereof by such Supplemental Administrative Agent shall run to and be enforceable by either the Administrative Agent or such Supplemental Administrative Agent, and (ii) the
provisions of this Article IX and of Section 10.04 and Section 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental Administrative Agent and all references therein to the
Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require.
(c) Should any instrument in writing from any Loan Party be required by any Supplemental Administrative Agent so appointed by the
Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrowers shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by the Administrative Agent. In case any Supplemental Administrative 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 Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.
Section 9.14.
Withholding TaxWithholding Tax.. To the extent required by any applicable Law, the Administrative Agent may deduct or withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. If the
Internal Revenue Service or any other Governmental Authority 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 because the appropriate form was
not delivered or was 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 indemnify and
hold harmless the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, and shall make payable in respect thereof within ten (10) days after demand therefore including any
penalties, additions to Tax or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred, 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 9.14. The agreements in this Section 9.14 shall
survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the repayment, satisfaction or discharge of all other obligations. For the
avoidance of doubt, (1) the term “Lender” shall, for purposes of this Section 9.14, include any L/C Issuer and any Swing Line Lender and “applicable Law” includes FATCA and (2) this
Section 9.14 shall not limit or expand the obligations of the Borrowers or any Guarantor under Section 3.01 or any other provision of this Agreement.
Section 9.15. Cash Management Obligations; Secured Hedge Agreements; Bilateral Letters of Credit. Except as otherwise expressly
set forth herein or in any Guarantee or other Collateral Document, no Cash Management Bank, Hedge Bank or Bilateral Letter of Credit Bank that obtains the benefits of Section 8.04, any Guarantee or any Collateral by virtue of the
provisions hereof or of any Guarantee or other Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other
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than in its capacity as a Lender or an Agent and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the
contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Cash Management Obligations, Obligations arising under Secured Hedge Agreements or Bilateral
Letter of Credit Obligations unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may reasonably request, from the applicable Cash Management Bank,
Hedge Bank or Bilateral Letter of Credit Bank.
Section 9.16. Presumptions by Administrative Agent. With Respect to any
payment that the Administrative Agent makes for the account of the Lenders or the L/C Issuer hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies
(such payment referred to as the “Rescindable Amount”): (1) the Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not
then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand
the Rescindable Amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the L/C
Issuer with respect to any amount owing under this Section 9.16 shall be conclusive, absent manifest error.
Section 9.17. Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the
Administrative Agent makes a payment hereunder in error to any Lender Recipient Party, whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each
Lender Recipient Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Lender Recipient Party in immediately available funds in the currency so
received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, 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. Each Lender Recipient Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might
otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Lender Recipient
Party promptly upon determining that any payment made to such Lender Recipient Party comprised, in whole or in part, a Rescindable Amount.
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 the Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or the applicable Loan Party, as the case
may be, acknowledged by the Administrative Agent (not to be unreasonably withheld or delayed) and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such
amendment, waiver or consent shall:
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(a) extend or increase the Commitment of any Lender without the written consent of each
Lender directly and adversely affected thereby (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any 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 the amount of, any
payment of principal or interest under Section 2.07 or Section 2.08, fees or other amounts without the written consent of each Lender directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Loans shall not
constitute a postponement of any date scheduled for the payment of principal or interest;
(c) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of
the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby, it being understood that any
change to the definition of First Lien Leverage Ratio, Secured Leverage Ratio or Total Leverage Ratio or in the component definitions thereof shall not constitute a reduction in the rate of interest or fees; 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 Borrowers to pay interest at the Default Rate;
(d) change any provision of this Section 10.01 or change any provision of Section 2.13 or Section 8.04 that
would alter the pro rata sharing of payments without the written consent of each Lender directly and adversely affected thereby;
(e)
release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender; provided that any transaction permitted under Section 7.04 or
Section 7.05 shall not be subject to this clause (e) to the extent such transaction does not result in the release of all or substantially all of the Collateral;
(f) release all or substantially all of the value of the Guarantees in any transaction or series of related transactions, without the written
consent of each Lender; provided that any transaction permitted under Section 7.04 or Section 7.05 shall not be subject to this clause (f) to the extent such transaction does not result in the release of
all or substantially all of the Guarantees;
(g) other than in connection with a debtor-in-possession financing or use of cash collateral
in any proceeding under any Debtor Relief Law permitted under any Acceptable Intercreditor Agreement, or except as otherwise expressly permitted by this Agreement or the other Loan Documents, subordinate the Liens on all or a material portion of the
Collateral securing the Obligations or the payment of the Obligations to other Indebtedness for borrowed money
(unless the opportunity to participate in the priming debt giving rise to such subordination is offered to all of the Lenders on a pro rata basis), without the written consent of each Lender
directly and adversely affected thereby;
(h) change the definition of “Required Lenders” or “Required Revolving
Credit Lenders” without the written consent of each
Lender.;
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(i) change
clause (w) of the proviso to Section 9.11(c) without the written consent of each Lender directly and adversely affected thereby;
(j) reduce,
or have the effect of reducing, the percentage of the aggregate principal amount of Loans whose Lenders must consent to an amendment, including, for the avoidance of doubt, the incurrence of Obligations in contemplation of or for the primary purpose
of influencing any voting threshold for purposes of any amendment, modification or waiver of the Collateral Documents, the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or the provisions in this Agreement that is to
occur simultaneously or substantially simultaneously with the incurrence of such Obligations, without the written consent of each Lender directly and adversely affected thereby; or
(k) amend,
modify or waive any provision of Section 7.12 or the definition of “Liability Management Transaction” without the written consent of the Supermajority Lenders;
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, change any provision of Section 1.10 or affect the rights or duties of an L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or
any other Loan Document; (iv) Section 10.07(h) 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; (v) (A) any amendment or waiver that by its terms affects the rights or duties of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other
Class) will require only the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto if such Class of Lenders were the only Class of Lenders and (B) in determining whether the requisite
percentage of Lenders have consented to any amendment, modification, waiver or other action, any Defaulting Lenders or Affiliates of the Parent Borrower shall be deemed to have voted in the same proportion as those Lenders who are not Defaulting
Lenders or Affiliates of the Parent Borrower, except with respect to (x) any amendment, waiver or other action which by its terms requires the consent of all Lenders or each affected Lender and (y) any amendment, waiver or other action
that by its terms adversely affects any such Affiliate of the Parent Borrower or Defaulting Lender in its capacity as a Lender in a manner that differs in any material respect from other affected Lenders, in which case the consent of such Affiliate
or Defaulting Lender, as applicable, shall be required and (vi) solely with the consent of the Required Revolving Credit Lenders (but without the consent of the Required Lenders or any other Lender), any such agreement may waive, amend or
modify any condition precedent set forth in Section 4.02 hereof as it pertains to any Revolving Credit Loan (it being understood that this clause (vi) shall not require Required Revolving Credit Lender approval in connection
with any amendment, consent or waiver of a Default or Event of Default hereunder, in which case, only the approval of the Required Lenders shall be required in respect of such consent, amendment or waiver). Notwithstanding the foregoing, this
Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Borrowers and the Administrative Agent (a) to add one or more additional credit facilities to this Agreement and to permit the extensions
of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Credit Loans, and the accrued interest and
fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and, if applicable, the Required Revolving Credit Lenders.
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Notwithstanding anything to the contrary contained in this Section 10.01,
(1) any guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement 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 Borrowers without the need to obtain the consent of any Lender if such amendment, supplement or waiver is delivered in order (i) to comply with
local Law or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects and (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan
Documents and (2) any Acceptable Intercreditor Agreement or Loan Document may be amended, supplemented or otherwise modified in accordance with its terms and subject only to the consent of the parties thereto that are expressly required to make such amendments, supplements or other
modifications. Furthermore, with the consent of the Administrative Agent at the request of the Borrowers (without the need to obtain any consent of any Lender), any Loan Document may be amended to cure ambiguities, inconsistencies, omissions,
mistakes or defects.
Notwithstanding anything in this Section 10.01 to the contrary, (a) technical and conforming
modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary (i) to integrate any Incremental Revolving Commitment, Refinancing Revolving Commitments or Extended
Revolving Credit Commitments, (ii) to integrate or make administrative modifications with respect to borrowings and issuances of Letters of Credit, (iii) to integrate and terms or conditions from any Incremental Facility Amendment that are
more restrictive than this Agreement in accordance with Section 2.14(d) and (iv) to make any amendments permitted by Section 1.03 and (b) without the consent of any Lender or L/C Issuer, the Loan Parties and the
Administrative Agent or any collateral agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into (x) any amendment, modification or waiver of any Loan Document, or enter into any new
agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local
law to give effect to, or protect any security interest for benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or
benefits of any Lender under any Loan Document or (y) any Acceptable Intercreditor Agreement pursuant to the terms thereof, in each case with the holders of Indebtedness permitted by this Agreement to be secured by the Collateral. Without
limitation of the foregoing, the Borrowers may, without the consent of any Lenders, upon delivery to the Administrative Agent (i) increase the interest rates (including any interest rate margins or interest rate floors), fees and other amounts
payable to any Class or Classes of Lenders hereunder and/or (ii) with the consent of the Administrative Agent, modify any other provision hereunder or under any other Loan Document in a manner, as determined by the Administrative Agent in its
sole discretion, more favorable to the then-existing Lenders or Class or Classes of Lenders; provided that the Administrative Agent will have at least five Business Days (or such shorter period to which the Administrative Agent may consent in
its reasonable discretion) after written notice from the Borrowers to provide such consent and may, in its sole discretion, provide written notice to the Lenders regarding any such proposed amendment.
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Notwithstanding any provision herein to the contrary, this Agreement may be amended with the
written consent of the Administrative Agent, the applicable L/C Issuer, the Borrowers and the Revolving Credit Lenders affected thereby to amend the definition of “Alternative Currency” or “Alternative Currency Daily Rate” or
“Alternative Currency Term Rate” or Section 1.10 solely to add additional currency options and the applicable interest rate with respect thereto, in each case solely to the extent permitted by Section 1.10.
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 email or facsimile transmission). 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) if to any Borrower, the Administrative Agent, 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 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 written notice to the Borrowers, the Administrative Agent, 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 (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(b)), when delivered; provided that notices and
other communications to the Administrative Agent, L/C Issuer and the Swing Line Lender pursuant to Article II shall not be effective until actually received by such Person during the person’s normal business hours. In no event shall a
voice mail message be effective as a notice, communication or confirmation hereunder.
(b) Electronic Communications. Notices
and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved
by it, provided that approval of such procedures may be limited to particular notices or communications.
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Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next
business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c)
The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent, Lead Arrangers or any of their respective Agent-Related Persons
(collectively, the “Agent Parties”) have any liability to the Loan Parties, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrowers’ or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan
Party, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, any L/C Issuer and the Swing Line Lender may change its
address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, electronic mail address, facsimile or telephone number
for notices and other communications hereunder by notice to the Borrowers, the Administrative Agent, the L/C Issuers and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agents from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such
Lender. Furthermore, 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 Borrower
Materials 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 Borrowers or their securities for purposes of United States
Federal or state securities laws.
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(e) Reliance by Agents and Lenders. The Administrative Agent, the L/C Issuer 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 Borrowers 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 Borrowers shall indemnify each
Agent-Related Person and each L/C Issuer and 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 any Borrower in the absence of gross negligence or
willful misconduct. All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent or the L/C Issuer, as applicable, and each of the parties hereto hereby consents to such recording.
(f) Notice to other Loan Parties. The Borrowers agree that notices to be given to any other Loan Party under this Agreement or any other
Loan Document may be given to the Borrowers in accordance with the provisions of this Section 10.02 with the same effect as if given to such other Loan Party in accordance with the terms hereunder or thereunder.
(g) Communications. Each Loan Party hereby agrees that it will provide to the Administrative Agent all information, documents and other
materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information
materials, but excluding any such communication (unless otherwise approved in writing by the Administrative Agent) that (i) relates to a request for a new, or a conversion of an existing, Borrowing or other extension of credit (including any
election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides a notice of intent to exercise a
Cure Right, (iv) provides notice of any Default under this Agreement or (v) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder
(all such non excluded communications, collectively, the “Specified Communications”; and all such excluded and non-excluded communications, the “Communications”), by transmitting the Specified Communications in
an electronic/soft medium in a format reasonably acceptable to the Administrative Agent at such e-mail address(es) provided to the Borrowers from time to time or in such other form, including hard copy delivery thereof, as the Administrative Agent
shall require. In addition, each Loan Party agrees to continue to provide the Specified Communications to the Administrative Agent in the manner specified in this Agreement or any other Loan Document or in such other form, including hard copy
delivery thereof, as the Administrative Agent shall reasonably request. Nothing in this Section 10.02 shall prejudice the right of the Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this
Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document or as any such Agent shall require.
Section 10.03. No Waiver; Cumulative Remedies. No failure by any Lender, the L/C Issuer or the Administrative Agent or 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.
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Section 10.04. Attorney Costs and Expenses. The Borrowers agree (a) if the
Closing Date occurs, to pay or reimburse the Administrative Agent and the Lead Arrangers for all reasonable and documented or invoiced out-of-pocket costs and expenses associated with the syndication of the Loans and Commitments and the preparation,
execution and delivery, administration, amendment, modification, waiver and/or enforcement 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), including all Attorney Costs of Davis Polk & Wardwell LLP (and any other counsel retained with the Borrowers’ consent (such consent not to be unreasonably withheld or delayed))
and one local and foreign counsel in each relevant jurisdiction, and (b) to pay or reimburse the Administrative Agent, the Lead Arrangers, the L/C Issuer and each Lender for all reasonable and documented out-of-pocket costs and expenses
incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all costs and expenses incurred in connection with any workout or restructuring in respect of the Loans, all such costs
and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs of one counsel for all such Persons (and, in the case of an actual or perceived conflict of interest, where
such Person affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Person)). The foregoing costs and expenses shall include all reasonable search, filing,
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 promptly upon receipt by the Borrowers of an invoice relating thereto setting forth such expenses in reasonable detail. 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.
Section 10.05.
Indemnification by the BorrowersIndemnification by the
Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender, each L/C Issuer, each Lead Arranger and their respective
Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other representatives (collectively, the “Indemnitees”) from and against any and all losses,
liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate
jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrowers of
such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising out of or relating to any claim or any litigation or other proceeding (regardless of whether such
Indemnitee is a party thereto and whether or not such proceedings are brought by any Borrower, its equity holders, its Affiliates, creditors or any other third person) that relates to the Closing Date Transactions or, the Transactions or the Amendment No. 4 Transactions, including the financing contemplated hereby, 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
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(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 alleged presence or Release or threat of Release of Hazardous Materials on, at, under or from any property currently
or, to the extent caused by any Borrower, any other Loan Party or any of their respective Subsidiaries, formerly owned, leased or operated by any Borrower, any other Loan Party or any of their respective Subsidiaries, or any Environmental Liability related in any way
toof any Borrower, any other Loan Party or any of
their respective Subsidiaries, or (d) 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) (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 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 controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees,
agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Closing Date Transactions or, the Transactions or the Amendment No. 4 Transactions, as applicable (in each case
as determined by a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court of competent jurisdiction in a final
and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Borrowers or any of their Affiliates (other than with respect to a claim against an
Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee (as determined by a court of competent
jurisdiction in a final and non-appealable decision)). 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 or any Loan Party 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); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. 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, its directors, managers, partners, 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 is consummated. All amounts due
under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, if the Borrowers have reimbursed any Indemnitee for any legal or other expenses in connection with
any Indemnified Liabilities and there is a final non-appealable judgment of a court of competent jurisdiction that the Indemnitee was not entitled to indemnification or contribution with respect to such Indemnified Liabilities pursuant to the
express terms of this Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section 10.05 shall survive the resignation of the Administrative
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 other
than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
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Section 10.06. Payments Set Aside. To the extent that any payment by or on
behalf of the Borrowers 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 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 Federal Funds Rate (or if the Federal Funds Rate is not available, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation).
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 as otherwise provided herein (including without limitation as permitted under Section 7.04), neither the Parent Borrower nor any of its Subsidiaries may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee, (ii) by way of participation in accordance
with the provisions of Section 10.07(e), (iii) by way of
pledge or assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or transfer by any party hereto (other than to any Disqualified Lender) shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the
conditions set forth in paragraph
(b))(ii) below, any Lender may assign to one or more assignees (“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) of:
(A) the Parent Borrower; provided that, (I) no consent of the Parent Borrower shall be required for an assignment
(1) to (x) any other Lender or any Affiliate of a Lender
or (2) if a Specified Event
ofy) any commercial bank that provides revolving credit loans in the ordinary course of business or
(2) if an Event of Default or a Specified Default has occurred and is continuing, to any Assignee and (II) the Parent Borrower shall be deemed to have consented to any such assignment unless
it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;
(B) the Administrative Agent; and
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(C) in the case of any assignment of any of the Amendment No. 4 Revolving Credit Facility, each L/C Issuer and the
Swing Line Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender’s Commitment or Loans 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 $5,000,000 unless the Parent Borrower and the Administrative Agent otherwise consent; provided that (1) no such consent of the Parent Borrower
shall be required if a Specified Event of Default has occurred and is continuing and (2) 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;
(C) (1) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire
and any documentation required by Section 3.01(f) and (2) the Assignee shall have delivered to the Administrative Agent all documentation and other information that the Administrative Agent reasonably requests in order to comply
with its ongoing obligations under applicable “know your customer”, and anti-money laundering rules and regulations, including the USA Patriot Act;
(D) the Assignee shall not be a natural person, or a Disqualified Lender (and such Assignee shall be required to represent that
it is not a Disqualified Lender or an Affiliate of a Disqualified Lender that would constitute a Disqualified Lender but for the fact that it is not readily identifiable as such on the basis of its name); provided that whether a prospective
assignee is a Disqualified Lender may be communicated to a Lender upon request but the list of Disqualified Lenders shall not be posted or otherwise distributed to the Lenders, prospective Lenders and prospective assignees; provided,
further, that it is agreed that the Parent Borrower may withhold its consent to an assignment to any person that is known by it to be an affiliate of a Disqualified Lender (regardless of whether it is readily identifiable as an Affiliate
by virtue of its name (other than, in the case of Disqualified Lenders under clause (ii) of the definition thereof, such Affiliates that are bona fide debt funds)).
(E) the Assignee shall not be a Defaulting Lender;
(F) the Assignee shall not be a Borrower or an Affiliate of a Borrower;
(G) [reserved];
(H) [reserved];
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(I) [reserved]; and
(J) Notwithstanding anything to the contrary contained herein, if any Loans or Commitments are assigned or participated
(x) to a Disqualified Lenders or (y) without complying with the Parent Borrower consent or notice requirements of this Section 10.07, then: (I) the Parent Borrower may require such Person to assign its rights and
obligations to one or more Eligible Assignees 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 or Commitments, in each case, without
premium, penalty, prepayment fee or breakage (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 (3) 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, (II) no such Person shall receive any information or reporting provided by the Parent Borrower, the Administrative Agent or any Lender, (III) 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, (IV) 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 (III)
above) so approves, and (V) 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 Parent 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 not apply to any assignee of a
Disqualified Lender that becomes a Lender so long as such assignee is not a Disqualified Lender or an Affiliate thereof.
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.
(c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(d) and receipt by the Administrative Agent from the
parties to each assignment of a processing and recordation fee of $3,500 (provided that (x) the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and
(y) such processing and recordation fee shall not be payable in the case of assignments by any Affiliate of the Lead Arrangers), from and after the effective date specified in each Assignment and Assumption, 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 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, 3.03, 3.04, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective
date of such assignment). Upon
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request, and the surrender by the assigning Lender of its Note (if any), the Borrowers (at their 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(e). For greater certainty, any assignment by a Lender
pursuant to this Section 10.07 shall not in any way constitute or be deemed to constitute a novation, discharge, recession, extinguishment or substitution of the existing Indebtedness and any Indebtedness so assigned shall continue to be
the same obligation and not a new obligations.
(d) The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts
(and related interest amounts) of the Loans, L/C Obligations (specifying the Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.04, owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, absent demonstrable error, and the Borrowers, the Agents 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 Borrowers, any Agent and any Lender (with respect to its own interests only), at any reasonable time
and from time to time upon reasonable prior notice.
(e) Any Lender may at any time, without the consent of, or notice to, the Borrowers or
the Administrative Agent, sell participations to any Person (other than a natural person, a Borrower or an Affiliate of the Borrower or, so long as whether a prospective participant is a Disqualified Lender may be communicated to a Lender upon
request, a Disqualified Lender) (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 Borrowers, 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 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 Section 10.01(a), (b), (c), (d), (e) or (f) that directly affects such Participant. Subject to Section 10.07(f), the Borrowers agree that each Participant shall
be entitled to the benefits of Sections 3.01, 3.03 and 3.04 (through the applicable Lender), subject to the requirements and limitations of such Sections (including Section 3.01(f)) and Sections 3.05 and
3.06, to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 10.07(b) (provided that any
documentation required to be provided under Section 3.01(f) shall be provided solely to the participating Lender). 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 to be subject to Section 2.13 as though it were a Lender. Any Lender that sells participations shall maintain a register on which it
enters the name and the address of each Participant and the principal amounts and related interest amounts of each Participant’s participation interest in the Commitments and/or Loans (or other rights or obligations) held by it
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(the “Participant Register”). The entries in the Participant Register shall be conclusive, absent demonstrable error, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of such participation interest as the owner thereof for all purposes notwithstanding any notice to the contrary. In maintaining the Participant Register, such Lender shall be acting as the
non-fiduciary agent of the Borrowers solely for this purpose and undertakes no duty, responsibility or obligation to the Borrowers (without limitation, in no event shall such Lender be a fiduciary of the Borrowers for any purpose). No Lender shall
have any obligation to disclose all or any portion of a 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 its other obligations
under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103103-1(c) of the United States Treasury Regulations or, if different, under Sections 871(h) or 881(c) of the Code.
(f) A Participant shall not be entitled to receive any greater payment under Section 3.01, 3.03 or and 3.04 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
Borrowers’ prior written consent and such consent explicitly acknowledges such participant’s right to receive greater payment or except to the extent such entitlement to a greater payment results from a Change in Law after such
Participant became a Participant.
(g) Any Lender may 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 other central bank; 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.
(h) 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 Borrowers (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 and (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. Each party hereto hereby agrees that (i) an SPC shall be entitled to the benefit of Sections 3.01, 3.03 and
3.04, subject to the requirements and limitations of such Sections (including SectionSections 3.01(e) and (f) and Sections 3.05 and
3.06), to the same extent as if such SPC were a Lender, 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 Borrowers under
this Agreement (including its obligations under Section 3.01, 3.03 or and 3.04) except to the extent any entitlement to greater amounts
results from a Change in Law after the grant to the SPC occurred, (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable and such liability shall remain with the
Granting Lender, 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 Borrowers and the Administrative Agent, 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 Obligation or credit or liquidity enhancement to such SPC.
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(i) Notwithstanding anything to the contrary contained herein, (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) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing
to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee 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 trustee shall not be entitled to exercise any
of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, any L/C Issuer or the Swing Line Lender may, upon thirty (30) days’
notice to the Borrowers and the Lenders, resign as an L/C Issuer or the 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 the Swing
Line Lender shall have identified, in consultation with the Borrowers, a successor L/C Issuer or Swing Line Lender willing to accept its appointment as successor L/C Issuer or Swing Line Lender, as applicable. In the event of any such resignation of
an L/C Issuer or the Swing Line Lender, the Borrowers shall be entitled to appoint from among the Lenders willing to accept such appointment a successor L/C Issuer or Swing Line Lender hereunder; provided that no failure by the Borrowers 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. 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 or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
(k) No Agent-Related Person shall 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; further, without limiting the generality of the foregoing clause, no Agent-Related Person shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender
or Participant or prospective Lender or Participant is a Disqualified Lender or (y) 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.
Section 10.08.
ConfidentialityConfidentiality.
Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information and to not use or disclose such information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ partners,
directors, officers, employees, trustees, investment advisors, professionals and other experts or agents, including accountants, legal counsel, independent auditors and other advisors (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential
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nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority, to any pledgee referred to in
Section 10.07(g); (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions
substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Borrowers), to any pledgee referred to in Section 10.07(i), 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; (f) with the written consent of the Borrowers; (g) to the extent such Information becomes publicly available
other than as a result of a breach of this Section 10.08; (h) to any Governmental Authority or examiner regulating any Lender; (i) 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 the Loan Parties received by it from such Lender); (j) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (k) to the extent that such Information is received by such Lender or any of its Affiliates
from a third party that is not, to such Lender’s knowledge, subject to any contractual or fiduciary confidentiality obligations owing to the Borrowers or any of their Affiliates; (l) to the extent that such Information is independently
developed by such Lender or any of its Affiliates, (m) to the extent consisting of customary disclosure regarding portfolio holdings in any public filing by such Lender or (n) upon the request or demand of any Governmental Authority or
other regulatory authority having jurisdiction over the Agent or Lenders, as applicable, (in which case the Agent or Lenders, as applicable, agree (except with respect to any audit or examination conducted by bank accountants or any regulatory
authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform the Borrowers promptly thereof prior to disclosure). In addition, the Agents and the Lenders may
disclose the existence of this Agreement and 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 any Loan Party or its
Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors or agents, relating to the Borrowers or any of their Subsidiaries or their business, other than any such information that is available to any
Agent or any Lender on a nonconfidential basis and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry prior to disclosure
by any Loan Party other than as a result of a breach of this Section 10.08, including, without limitation, information delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.
Section 10.09.
SetoffSetoff. 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 Agent and its Affiliates, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any
time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by the Borrowers (on their own behalf and on behalf of each Loan Party and 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 (in any currency) (other than any payroll, trust and tax accounts) at any time owing by,
such Agent and its Affiliates, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing
to such Agent and its
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Affiliates, such Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent,
such Lender, such L/C Issuer or such 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. Notwithstanding anything to the contrary contained herein, none of each Agent and its Affiliates, each Lender and its Affiliates and each L/C Issuer and its Affiliates shall have a right to set off and apply any deposits
held or other Indebtedness owing by such Agent or its Affiliates, such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign
Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrowers and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be;
provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and
remedies (including other rights of setoff) that such Agent, such Lender and such L/C Issuer may have.
Section 10.10. CounterpartsCounterparts. 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 signed 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 10.11. IntegrationIntegration. 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 10.12. 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. The provisions of Sections 10.14 and 10.15 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.
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Section 10.13.
SeverabilitySeverability. 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.
Section 10.14. GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS. .
(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 (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED THEREIN).
(b) EXCEPT AS SET FORTH IN THE
FOLLOWING PARAGRAPH, 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 THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE (PROVIDED
THAT IF NONE OF SUCH COURTS CAN AND WILL EXERCISE SUCH JURISDICTION, SUCH EXCLUSIVITY SHALL NOT APPLY), AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWERS, THE
PARENT BORROWER, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWERS, THE PARENT
BORROWER, 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.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION (I) FOR PURPOSES OF ENFORCING A JUDGMENT, (II) IN
CONNECTION WITH EXERCISING REMEDIES AGAINST THE COLLATERAL IN A JURISDICTION IN WHICH SUCH COLLATERAL IS LOCATED, (III) IN CONNECTION WITH ANY PENDING BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDING IN SUCH JURISDICTION OR (IV) TO THE EXTENT THE COURTS
REFERRED TO IN THE PREVIOUS PARAGRAPH DO NOT HAVE JURISDICTION OVER SUCH LEGAL ACTION OR PROCEEDING OR THE PARTIES OR PROPERTY SUBJECT THERETO.
Section 10.15. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW 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
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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 10.15 WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 10.16. Binding EffectBinding Effect. This Agreement shall become effective when it shall have been executed by each of the Borrowers and the Parent Borrower and the Administrative Agent
shall have been notified by each Lender, Swing Line Lender and L/C Issuer that each such Lender, Swing Line Lender and L/C Issuer has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, each Agent, the L/C
Issuer, the Swing Line Lender and each Lender and their respective successors and assigns, except that the Borrowers shall not 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 10.17.
Judgment CurrencyJudgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrowers in respect of any such sum due from it to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative
Agent from the Borrowers in the Agreement Currency, the Borrowers agree, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrowers (or to any other Person who may be
entitled thereto under applicable Law).
Section 10.18.
Lender ActionLender Action. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party
or any other obligor under any of the Loan Documents or the Secured Hedge Agreements (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any
actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the prior written consent of the Administrative Agent. The provisions of this
Section 10.18 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.
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Section 10.19.
Know-Your-Customer, Etc.Know-Your-Customer,
Etc.. Each Lender shall, promptly following a request by the Administrative Agent, provide all documentation and other information that the Administrative Agent reasonably requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.
Section 10.20. USA PATRIOT Act. Each Lender hereby notifies the Borrowers that, pursuant to the requirements of the USA PATRIOT
Act, it is required to obtain, verify and record information that identifies the Borrowers and the Guarantors, which information includes the name and address of the Borrowers and the Guarantors and other information that will allow such Lender to
identify the Borrowers and the Guarantors in accordance with the USA PATRIOT Act.
Section 10.21.
Section 10.21. Acceptable Intercreditor Agreement.
Agreements.
(a) Notwithstanding anything to the contrary in this Agreement or in any
other Loan Document: (i) the Liens granted to the Collateral Agent in favor of the Secured Parties pursuant to the Loan Documents and the exercise of any right related to any Collateral shall be subject, in each case, to the terms of the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and any other Acceptable Intercreditor Agreement then in effect, (ii) in the event of any conflict between the express terms and provisions of this Agreement or any other Loan
Document, on the one hand, and the Amendment No. 2 Effective
DatePari Passu First Lien Intercreditor
Agreement, the Junior Lien Intercreditor Agreement, and/or
such other Acceptable Intercreditor Agreement, on the other hand, the terms and provisions of the Amendment No. 2 Effective DatePari Passu First Lien Intercreditor Agreement, the Junior Lien
Intercreditor Agreement and/or such other Acceptable Intercreditor Agreement, shall control, and (iii) each Lender (and, by its acceptance of the benefits of any Collateral Document, each other Secured Party) hereunder authorizes and instructs
the Administrative Agent and Collateral Agent to execute
anythe Pari
Passu First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and any other Acceptable Intercreditor Agreement from time to time on behalf of such Lender, and such Lender
agrees to be bound by the terms thereof.
(b) Each Lender (and, by its acceptance of the benefits of any Collateral Document, each
other Secured Party) hereunder authorizes and instructs the Collateral Agent, as Collateral Agent and on behalf of such Lender or other Secured Party, to enter into one or more
ApplicableAcceptable
Intercreditor Agreements from time to time and agrees that it will be bound by and will take no actions contrary to the provisions thereof.
(c)
Notwithstanding anything under any Loan Document to the contrary, until such time as the Discharge of the First Lien Obligations (each, as defined in the First Lien Pari Passu Intercreditor Agreement) or the Discharge of Senior Obligations (each, as
defined in the Junior Lien Intercreditor Agreement) has occurred, (i) any covenant under any Loan Document requiring (or any representation or warranty hereunder to the extent that it would have the effect of requiring) the delivery of
possession or control to the Administrative Agent or the Collateral Agent of the Shared Collateral (as defined in the First Lien Pari Passu Intercreditor Agreement) or Senior Collateral (as defined in the Junior Lien Intercreditor Agreement) shall
be deemed to have been satisfied (or, in the case of any representation and warranty, shall be deemed to be true) if, prior to the Discharge of the First Lien Obligations (each, as defined in the First Lien Pari Passu
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Intercreditor Agreement) or the Discharge of Senior Obligations
(each, as defined in the Junior Lien Intercreditor Agreement), such possession or control shall have been, subject to and in accordance with the First Lien Pari Passu Intercreditor Agreement or the Junior Lien Intercreditor Agreement, delivered to
the Bailee Agent (as defined in the First Lien Pari Passu Intercreditor Agreement) and (ii) any covenant under any Loan Document requiring (or any representation or warranty hereunder to the extent it would have the effect of requiring) the
giving of any notice to the Administrative Agent or the Collateral Agent or any other Person, the provision of voting rights or the obtaining of any consent of the Collateral Agent or any Person, in each case, solely in connection with any Shared
Collateral or any Senior Collateral, shall be deemed to be satisfied if the applicable grantor complies with the requirements of the similar provision of the RCF Security Agreement (or any replacement thereof in respect of the RCF Obligations or,
following the Discharge of the RCF Obligations, the equivalent Security Document that the Controlling Collateral Agent is party to) (each, as defined in the First Lien Pari Passu Intercreditor Agreement) or the RCF Security Agreement (or any
replacement thereof in respect of the RCF Obligations or, following the Discharge of the RCF Obligations, the equivalent Security Document that the Controlling Collateral Agent is party to) (each, as defined in the Junior Lien Intercreditor
Agreement). For the avoidance of doubt, no right, power or remedy granted to the Collateral Agent under any Loan Document shall be exercised by the Collateral Agent, and no direction shall be given by the Collateral Agent, in contravention of any of
the First Lien Pari Passu Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement.
Section 10.22.
Obligations AbsoluteObligations
Absolute. To the fullest extent permitted by applicable Law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Loan Party;
(b) any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party;
(c) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from any Loan Document or any other agreement or instrument relating thereto;
(d) any
exchange, release or non-perfection of any other Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;
(e) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or
(f) any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties.
Section 10.23. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby
(including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Borrowers and the Parent Borrower acknowledge and agree, and acknowledge their Affiliates’ understanding, that:
(i) (A)
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the arranging and other services regarding this Agreement provided by the Administrative Agent and the Lead Arrangers are arm’s-length commercial transactions between the Borrowers, the
Parent Borrower and their respective Affiliates, on the one hand, and the Administrative Agent and the Lead Arrangers, on the other hand, (B) each of the Borrowers and the Parent Borrower has consulted its own legal, accounting, regulatory and
tax advisors to the extent it has deemed appropriate, and (C) each of the Borrowers and the Parent Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by
the other Loan Documents; (ii) (A) the Administrative Agent, each Lender and each Lead Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for the Borrowers, the Parent Borrower or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, nor any Lender or Lead Arrangers has any
obligation to the Borrowers, the Parent Borrower or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent, each Lender and each Lead Arranger and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, the Parent Borrower and their respective
Affiliates, and neither the Administrative Agent nor any Lead Arranger has any obligation to disclose any of such interests to the Borrowers, the Parent Borrower or any of their respective Affiliates. To the fullest extent permitted by law, each of
the Borrowers and the Parent Borrower hereby waives and releases any claims that it may have against the Administrative Agent, each Lender and each Lead Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transaction contemplated hereby.
Section 10.24. Electronic Execution of Assignments and Certain Other
Documents. 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 Assignment and Assumptions, amendments or other Committed Loan Notices, waivers and consents) 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 recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic
signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
Section 10.25. Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in
any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability
is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial Institution; and
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(i) the effects of any Bail-in Action on any such liability, including, if
applicable:
(ii) a reduction in full or in part or cancellation of any such liability;
(iii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected
Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Agreement or any other Loan Document; or
(b) 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 10.26. Lender RepresentationLender Representation.
Each Lender as of the Amendment No. 2 Effective Date represents and warrants as of the Amendment No. 2 Effective Date that such Lender is not and will not be (a) an employee benefit plan subject to Title I of ERISA, (b) a plan or
account subject to Section 4975 of the Code, (c) an entity deemed to hold Plan Assets of any such plans or accounts or (d) a “governmental plan” within the meaning of Section 3(32) of ERISA. No portion of any Loan
shall be funded or held with Plan Assets.
Section 10.27.
Section 10.27. Acknowledgement Regarding any Supported QFCs. To the extent that
the Loan Documents provide support, through a guarantee or otherwise, for any Hedge Agreement 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.
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(b) As used in this Section 10.26, the following terms have the following
meanings:
“BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and
interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” shall mean any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R.
§§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified
financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT
BLANKSIGNATURE
PAGES NOT
RESTATED AS OF THE AMENDMENT NO. 4 EFFECTIVE DATE.]
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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
OWENS & MINOR, INC.
as the Parent Borrower
By:
Name:
Title:
OWENS & MINOR DISTRIBUTION, INC.,
as a Borrower
By:
Name:
Title:
OWENS & MINOR MEDICAL, INC.,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
as a Borrower
By:
Name:
Title:
O&M HALYARD, INC.,
as a Borrower
By:
Name:
Title:
[Signature Page to Credit Agreement]
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Title:
[Signature Page to Credit Agreement]
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By:
Name:
Title:
[Signature Page to Credit Agreement]
[LENDER]
as a Lender
By:
Name:
Title:
[Signature Page to Credit Agreement]
EXHIBIT E
to Amendment No. 4 to Credit Agreement and Consent
First Lien Intercreditor Agreement
[See attached.]
Execution Version
AMENDED AND RESTATED
FIRST LIEN
PARI PASSU INTERCREDITOR AGREEMENT
dated as of June 15, 2026
among
BANK OF AMERICA, N.A.,
as RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as TLB
Collateral Agent,
REGIONS BANK,
as First Lien Notes Collateral Agent,
and
each Additional Collateral
Agent from time to time party hereto,
and
acknowledged and agreed by
ACCENDRA HEALTH, INC.,
as the
Parent Borrower,
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC
APRIA,
INC.,
and
BYRAM HEALTHCARE
CENTERS, INC.,
as Borrowers
and
the other Grantors from time
to time party hereto
This AMENDED AND RESTATED FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of
June 15, 2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among BANK OF AMERICA, N.A., in its capacity, together with its successors in such
capacity, as RCF Collateral Agent (as defined below) under the RCF Credit Agreement (as defined below), JPMORGAN CHASE BANK, N.A., in its capacity, together with its successors in such capacity, as the TLB Collateral Agent (as defined below)
under the TLB Credit Agreement (as defined below), REGIONS BANK, in its capacity, together with its successors in such capacity, as the First Lien Notes Collateral Agent (as defined below) under the First Lien Notes Indenture (as defined
below), and each Additional Collateral Agent (as defined below) from time to time party hereto as collateral agent for any First Lien Obligations (as defined below) of any other Class (as defined below), and acknowledged and agreed by ACCENDRA
HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company
(“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with the Parent Borrower,
Barista I, Barista II and Apria, the “Borrowers”) and the other Grantors (as defined below) party hereto.
The RCF Collateral Agent and the TLB Collateral Agent entered into that certain First Lien Pari Passu Intercreditor Agreement dated as of
March 29, 2022 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Intercreditor Agreement”).
Pursuant to Section 10.02(b) of the Existing Intercreditor Agreement, the RCF Collateral Agent and the TLB Collateral Agent desire to
amend and restate the Existing Intercreditor Agreement to, among other things, (i) add Regions Bank, as First Lien Notes Collateral Agent, as a party, (ii) designate the First Lien Notes Obligations as First Lien Obligations hereunder, and
(iii) amend the rights, remedies and other agreements of the parties hereto in respect of the Shared Collateral (as defined herein) as set forth in this Agreement.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Certain Defined Terms. Capitalized terms used but not otherwise defined herein, if defined in the New York
UCC, have the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below.
“Additional Collateral Agent” has the meaning assigned to such term in Article IX.
“Additional First Lien Obligations” means all obligations of the Borrowers and the other Grantors that shall have been
designated as such pursuant to Article IX, together with any Refinancing thereof; provided, that the holders of any such Refinancing debt (or the applicable Collateral Agent on their behalf) shall, to the extent not already party hereto in such
capacity, bind themselves in writing to the terms of this Agreement.
“Additional First Lien Obligations Documents”
means the notes, the indentures, security documents or any other agreements or instruments under which Additional First Lien Obligations of any Series are issued or incurred and all other instruments, agreements and other documents evidencing or
governing Additional First Lien Obligations of such Series or providing any guarantee, Lien or other right in respect thereof.
“Additional Secured Parties” means the holders of any Additional First
Lien Obligations and any collateral agent named as authorized representative for such Series in the Collateral Agent Joinder Agreement.
“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. For purposes of this definition, “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, and “controlling” and “controlled” have meanings correlative thereto.
“Agents/Trustees” means the RCF Administrative Agent, the TLB Administrative Agent, the First Lien Notes Trustee, and
any administrative agent or trustee (in its capacity as such) for any Additional First Lien Obligations of any Series.
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Amend” means, in respect of any agreement, to amend, restate, supplement, waive or otherwise modify such agreement, in
whole or in part. The terms “Amended” and “Amendment” shall have correlative meanings.
“Authorized Officer” means, with respect to any Person, the chief executive officer, the chief financial officer, principal
accounting officer, the president, any vice president, treasurer, general counsel, secretary or another executive officer of such Person.
“Bailee Agent” means, (a) prior to the Discharge of the RCF Obligations, the RCF Collateral Agent, and
(b) following the Discharge of the RCF Obligations, the Controlling Collateral Agent.
“Bankruptcy Case” has the
meaning assigned to such term in Section 5.01(b).
“Bankruptcy Code” means Title 11 of the United States Code, as
amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign law for the relief of
debtors.
“Borrowers” has the meaning assigned to such term in the preamble hereto.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or the
place of payment are authorized or required by law to remain closed.
“Class”, when used in reference to:
(a) any First Lien Obligations, refers to whether such First Lien Obligations are the RCF Obligations, the TLB Obligations, the First Lien
Notes Obligations or the Additional First Lien Obligations of any Series;
(b) any Agent/Trustee refers to whether such Agent/Trustee is
the RCF Administrative Agent, the TLB Administrative Agent, the First Lien Notes Trustee, or the administrative agent or trustee (in its capacity as such) for any Additional First Lien Obligations of any Series;
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(c) any Collateral Agent, refers to whether such Collateral Agent is the RCF Collateral
Agent, the TLB Collateral Agent, the First Lien Notes Collateral Agent or the Additional Collateral Agent with respect to the Additional First Lien Obligations of any Series;
(d) any Secured Parties, refers to whether such Secured Parties are the RCF Secured Parties, the TLB Secured Parties, the First Lien Notes
Secured Parties or the holders of the Additional First Lien Obligations of any Series;
(e) any Secured Credit Documents, refers to
whether such Secured Credit Documents are the RCF Documents, the TLB Documents, the First Lien Notes Documents, or the Additional First Lien Obligations Documents with respect to Additional First Lien Obligations of any Series; and
(f) any Security Documents, refers to whether such Security Documents are the RCF Security Agreement (and the other Collateral Documents (as
defined in the RCF Credit Agreement)), the TLB Security Agreement (and the other Collateral Documents (as defined in the TLB Credit Agreement)), the First Lien Notes Security Documents, or the security documents with respect to Additional First Lien
Obligations of any Series.
“Collateral” means all assets of any of the Borrowers or any of the Grantors now or
hereafter subject to a Lien securing any First Lien Obligation.
“Collateral Agent Joinder Agreement” means a
supplement to this Agreement substantially in the form of Exhibit I.
“Collateral Agents” means the RCF Collateral
Agent, the TLB Collateral Agent, the First Lien Notes Collateral Agent and each Additional Collateral Agent.
“Common
Currency” means U.S. dollars.
“Controlling Class” means, at any time, the Class of First Lien
Obligations that, at such time, constitutes the largest outstanding principal amount of any outstanding Class of First Lien Obligations.
“Controlling Collateral Agent” means, with respect to any Shared Collateral, (a) until the occurrence of the Non-Controlling Collateral Agent Enforcement Date, the Collateral Agent for the Controlling Class (which, as of the date hereof, is the First Lien Notes Collateral Agent) with respect to such Shared Collateral
provided that, following the Discharge of either the TLB Obligations or the First Lien Notes Obligations (other than, in each case, in connection with a Refinancing (or successive Refinancings) thereof), the Controlling Collateral Agent shall
act at the direction of the Required Secured Parties of each Class of First Lien Obligations that remains outstanding and (b) on and after the Non-Controlling Collateral Agent Enforcement Date, the
Major Non-Controlling Collateral Agent with respect to such Shared Collateral. At or prior to becoming the Controlling Collateral Agent, the applicable Collateral Agent shall become party to the Junior Lien
Intercreditor Agreement.
“Controlling Secured Parties” means, with respect to any Shared Collateral, the Secured
Parties whose Collateral Agent is the Controlling Collateral Agent with respect to such Shared Collateral.
“Credit
Participation” means in relation to any Class of First Lien Obligations, as applicable, the aggregate amount of drawn and undrawn commitments under any credit agreement or similar instrument in respect thereof, the principal amount of
outstanding notes in respect thereof, or the principal amount otherwise outstanding in respect thereof, in each case, calculated in accordance with the terms of the applicable Secured Credit Document.
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“Default” means a “Default” (or similar event, however
denominated) as defined in any Secured Credit Document.
“DIP Financing” has the meaning assigned to such term in
Section 5.01(b).
“DIP Financing Liens” has the meaning assigned to such term in Section 5.01(b).
“DIP Lenders” has the meaning assigned to such term in Section 5.01(b).
“Discharge” means, with respect to any Shared Collateral and any Class of First Lien Obligations, the date on which
such Class of First Lien Obligations is no longer secured by such Shared Collateral. The term “Discharged” shall have a corresponding meaning.
“Event of Default” means an “Event of Default” (or similar event, however denominated) as defined in any
Secured Credit Document.
“First Lien Obligations” means (a) all the RCF Obligations, (b) all the TLB
Obligations, (c) all the First Lien Notes Obligations and (d) all the Additional First Lien Obligations.
“First Lien
Notes Collateral Agent” means the “Notes Collateral Agent” as defined in the First Lien Notes Indenture which, as of the date hereof, is Regions Bank.
“First Lien Notes Documents” means the “Note Documents” as defined in the First Lien Notes Indenture.
“First Lien Notes Indenture” means that certain Indenture relating to those certain 9.000% Senior Secured First Lien Notes
due 2032, dated as of the date hereof, among the Parent Borrower, the guarantors party thereto, and Regions Bank, as trustee and notes collateral agent, and one or more other financing arrangements (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any Refinancing thereof; provided
(a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Collateral Agent Joinder Agreement and (b) that in the case of any
Refinancing, the Parent Borrower designates the applicable agreements as the “First Lien Notes Indenture” (and not an Additional First Lien Obligations Document) hereunder.
“First Lien Notes Obligations” means the “Notes Obligations” as such term is defined in the First Lien Notes
Indenture, together with any Refinancing thereof.
“First Lien Notes Secured Parties” means the “Notes Secured
Parties” as defined in the First Lien Notes Indenture.
“First Lien Notes Security Documents” means the
“Notes Security Documents” as defined in the First Lien Notes Indenture.
“First Lien Notes Trustee” means
the “Trustee” as defined in the First Lien Notes Indenture which, as of the date hereof, is Regions Bank.
“First Non-Controlling Class” has the meaning assigned to such term in the definition of “Major Non-Controlling Collateral Agent”.
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“Grantor Joinder Agreement” means a supplement to this Agreement
substantially in the form of Exhibit II.
“Grantors” means, at any time, each Borrower and each Subsidiary of the
Parent Borrower that, at such time, pursuant to Security Documents of any Class have granted a Lien on any of its assets to secure any First Lien Obligations of such Class (including any Subsidiary which becomes a party to this Agreement as
contemplated by Section 10.12).
“Impairment” has the meaning assigned to such term in Section 2.02.
“Indebtedness” has the meaning assigned to such term in the RCF Credit Agreement, TLB Credit Agreement or the First Lien
Notes Indenture, as applicable.
“Insolvency or Liquidation Proceeding” means:
(a) any case or proceeding commenced by or against any Borrower or any other Grantor under any Bankruptcy Law, any other
proceeding for the reorganization, receivership, recapitalization or adjustment or marshalling of the assets or liabilities of any Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrowers
or any other Grantor or its assets or any similar case or proceeding relative to any Borrower or any other Grantor or its creditors or its assets, as such, in each case whether or not voluntary;
(b) any liquidation, dissolution, marshalling of assets or liabilities, assignment for the benefit of creditors or other
winding up of or relating to any Borrower or any other Grantor or its assets, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency and whether or not in a court supervised proceeding; or
(c) any other proceeding of any type or nature in which substantially all claims of creditors of the Borrowers or any other
Grantor are determined and any payment or distribution is or may be made on account of such claims.
“Intervening
Creditor” has the meaning assigned to such term in Section 2.02.
“Intervening Lien” has the meaning
assigned to such term in Section 2.02.
“Lien” means, with respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease (as defined in the RCF Credit Agreement) having substantially the same economic effect as any of the foregoing).
“Major Non-Controlling Collateral Agent” means, with respect to any Shared
Collateral, at any time, the Collateral Agent of the Class of First Lien Obligations that, at such time, constitutes the second-largest outstanding principal amount of any outstanding Class of First Lien Obligations (such Class, the
“First Non-Controlling Class”) with respect to such Shared Collateral.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
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“Non-Controlling Collateral
Agent” means, at any time, any Collateral Agent that is not the Controlling Collateral Agent.
“Non-Controlling Collateral Agent Enforcement Date” means, with respect to any Non-Controlling Collateral Agent, the date which is 180 days (throughout which 180 day
period such Non-Controlling Collateral Agent was the Major Non-Controlling Collateral Agent) after the occurrence of both (a) an Event of Default (under and as
defined in the Secured Credit Documents under which such Non-Controlling Collateral Agent is the Collateral Agent) that has not been cured or waived and (b) the Controlling Collateral Agent’s and each other Collateral Agent’s
receipt of written notice from such Non-Controlling Collateral Agent certifying that (x) such Non-Controlling Collateral Agent is the Major Non-Controlling
Collateral Agent and that an Event of Default (under and as defined in the Secured Credit Documents under which such Non-Controlling Collateral Agent is the Collateral Agent) has occurred and is continuing and has not been cured or waived and
(y) the First Lien Obligations of the Class with respect to which such Non-Controlling Collateral Agent is the Collateral Agent are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance
with the terms of the applicable Secured Credit Documents; provided that the Non-Controlling Collateral Agent Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with
respect to any Shared Collateral (1) at any time the Controlling Collateral Agent has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral or (2) at any time the Grantor that has granted a
security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Non-Controlling Secured Parties” means, at any time, the Related Secured Parties
of any Non-Controlling Collateral Agent.
“Parent Borrower” has the meaning
assigned to such term in the preamble hereto.
“Person” means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, governmental authority or other entity.
“Plan of
Reorganization” means any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding under the Bankruptcy Code or
any other Bankruptcy Law.
“Possessory Collateral” means any Shared Collateral in the possession of a Collateral Agent
(or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes,
Instruments, and Chattel Paper, in each case, delivered to or in the possession of any Collateral Agent under the terms of the Security Documents.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the
commencement of any Insolvency or Liquidation Proceeding, whether or not allowed or allowable as a claim in any such Insolvency or Liquidation Proceeding.
“Proceeds” has the meaning assigned to such term in Section 2.01(b).
“Purchase Event” has the meaning assigned to such term in Section 7.06.
“Purchase Event Date” means, in relation to any Purchase Event, each of the Second Purchase Event, the Third Purchase Event
and the Fourth Purchase Event.
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“Purchase Event Expiration Date” means, in relation to any Purchase
Event, the latest date on which a Purchase Event Date occurs.
“Purchasing Secured Parties” means:
(a) on and from any Purchase Event to and including the date falling ten (10) Business Days thereafter (such date, the
“Second Purchase Event”), all or a portion of the Secured Parties that constitute the Controlling Class;
(b) after and excluding such Second Purchase Event to and including the date falling ten (10) Business Days thereafter
(such date, the “Third Purchase Event”), all or a portion of the Secured Parties that constitute the First Non-Controlling Class; and
(c) after and excluding such Third Purchase Event to and including the date falling ten (10) Business Days thereafter
(such date, the “Fourth Purchase Event”), all or a portion of the Secured Parties that constitute the Second Non-Controlling Class.
“RCF Administrative Agent” means the “Administrative Agent” as defined in the RCF Credit Agreement which, as of
the date hereof, is Bank of America, N.A..
“RCF Credit Agreement” means that certain Credit Agreement, dated as of
March 10, 2021 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of February 22, 2022, that certain Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to
Security Agreement and Amendment No. 1 to Guaranty, dated as of March 29, 2022, that certain Amendment No. 3 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement and Consent
dated as of the date hereof), by and among the Borrowers, the lenders party thereto from time to time, Bank of America, N.A., as administrative agent and collateral agent, and one or more other financing arrangements (including, without limitation,
any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any Refinancing thereof;
provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Collateral Agent Joinder Agreement and (b) that in the
case of any Refinancing, the Parent Borrower designates the applicable agreements as the “RCF Credit Agreement” (and not an Additional First Lien Obligations Document) hereunder.
“RCF Collateral Agent” means the “Collateral Agent” as defined in the RCF Credit Agreement which, as of the
date hereof, is Bank of America, N.A..
“RCF Documents” means the “Loan Documents” as defined in the RCF
Credit Agreement.
“RCF Obligations” means the “Obligations” as defined in the RCF Credit Agreement,
together with any Refinancing thereof.
“RCF Secured Parties” means the “Secured Parties” as defined in the
RCF Credit Agreement.
“RCF Security Agreement” means the “Security Agreement” as defined in the RCF Credit
Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
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“Related Secured Credit Documents” means, with respect to the Collateral
Agent or Secured Parties of any Class, the Secured Credit Documents of such Class.
“Related Secured Parties” means,
with respect to the Collateral Agent of any Class, the Secured Parties of such Class.
“Refinance” means, in respect of
any Indebtedness, to refinance, extend, exchange, renew, refund, repay, prepay, redeem, purchase, defease, retire, restructure, amend, increase, modify, supplement or replace, or to issue other Indebtedness or enter alternative financing
arrangements in exchange or replacement for, such Indebtedness, in whole or in part, including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including, in each case, but not limited to, after the original
instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” shall have correlative
meanings.
“Required Secured Parties” means, with respect to any Class at any time, holders of more than 50% of
the aggregate outstanding principal amount of the Indebtedness of such Class at such time.
“Junior Lien Intercreditor
Agreement” means that certain Junior Lien Intercreditor Agreement, dated as of the date hereof, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, among the Collateral Agents,
Regions Bank as the Initial Junior Lien Collateral Agent thereunder, the Borrowers, and the other Grantors party thereto.
“Second Non-Controlling Class” means, at any time, the Class of First Lien
Obligations that, at such time, constitutes the third-largest outstanding principal amount of any outstanding Class of First Lien Obligations.
“Secured Credit Documents” means, collectively, (a) the RCF Documents, (b) the TLB Documents, (c) First Lien
Notes Documents and (d) the Additional First Lien Obligations Documents.
“Secured Parties” means (a) the RCF
Secured Parties, (b) the TLB Secured Parties, (c) the First Lien Notes Secured Parties and (d) the Additional Secured Parties.
“Security Documents” means (a) the RCF Security Agreement and the other Collateral Documents (as defined in the RCF
Credit Agreement), (b) the TLB Security Agreement and the other Collateral Documents (as defined in the TLB Credit Agreement), (c) the First Lien Notes Security Documents and (d) any other agreement entered into in favor of the Collateral Agent
of any other Class for the purpose of securing the First Lien Obligations of such Class.
“Series”, when used in
reference to Additional First Lien Obligations, refers to such Additional First Lien Obligations as shall have been issued or incurred pursuant to the same credit agreements, indentures or other agreements and with respect to which the same Person
acts as the Additional Collateral Agent.
“Shared Collateral” means, at any time, Collateral on which Collateral Agents
or Secured Parties of any two or more Classes have at such time a Lien (including as a result of the agreements set forth in Section 4.01). If First Lien Obligations of more than two Classes are outstanding at any time, then any Collateral
shall constitute Shared Collateral with respect to First Lien Obligations of any Class only if the Collateral Agent or Secured Parties of such Class have at such time a Lien on such Collateral.
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“Subsidiary” of a Person means a corporation, company, partnership, joint
venture, limited liability company or other business entity of which 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, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Borrower.
“TLB Administrative Agent” means the “Administrative Agent” as defined in the TLB Credit Agreement which, as of
the date hereof, is JPMorgan Chase Bank, N.A..
“TLB Credit Agreement” means that certain Term Loan Credit Agreement,
dated as of March 29, 2022 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 2 to Term Loan Credit Agreement and Consent dated as of the date
hereof), by and among the Borrowers, the lenders party thereto from time to time, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as amended, restated, amended and restated, extended, supplemented or otherwise modified from
time to time, together with any Refinancing thereof; provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a
Collateral Agent Joinder Agreement and (b) that in the case of any Refinancing, the Parent Borrower designates the applicable agreements as the “TLB Credit Agreement” (and not an Additional First Lien Obligations Document)
hereunder.
“TLB Documents” means the “Loan Documents” as defined in the TLB Credit Agreement.
“TLB Obligations” means the “Obligations” as such term is defined in the TLB Credit Agreement, together with
any Refinancing thereof.
“TLB Secured Parties” means the TLB Collateral Agent and the holders of the TLB Obligations
issued pursuant to the TLB Credit Agreement.
“TLB Security Agreement” means the “Security Agreement” as
defined in the TLB Credit Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
SECTION 1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to
be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any
definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or
otherwise modified, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such
subsidiaries, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections and Exhibits shall be construed to refer to Articles, and Sections of, and Exhibits to, this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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SECTION 1.03 Concerning the Collateral Agents.
(a) Each acknowledgement, agreement, consent and waiver (whether express or implied) in this Agreement made by the RCF
Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to the RCF Collateral Agent pursuant to the authorization thereof under the RCF Credit Agreement and the RCF Security
Agreement. It is understood and agreed that the RCF Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties is in compliance with the terms of this Agreement, and no
party hereto or any other Secured Party shall have any right of action whatsoever against the RCF Collateral Agent for any failure of any of its Related Secured Parties to comply with the terms hereof or for any of its Related Secured Parties taking
any action contrary to the terms hereof.
(b) Each acknowledgement, agreement, consent and waiver (whether express or
implied) in this Agreement made by the TLB Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to the TLB Collateral Agent pursuant to the authorization thereof under the
TLB Credit Agreement. It is understood and agreed that the TLB Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties is in compliance with the terms of this Agreement,
and no party hereto or any other Secured Party shall have any right of action whatsoever against the TLB Collateral Agent for any failure of any of its Related Secured Parties to comply with the terms hereof or for any of its Related Secured Parties
taking any action contrary to the terms hereof.
(c) Each acknowledgement, agreement, consent and waiver (whether express
or implied) in this Agreement made by the First Lien Notes Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to the First Lien Notes Collateral Agent pursuant to the
authorization thereof under the First Lien Notes Indenture. It is understood and agreed that the First Lien Notes Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties
is in compliance with the terms of this Agreement, and no party hereto or any other Secured Party shall have any right of action whatsoever against the First Lien Notes Collateral Agent for any failure of any of its Related Secured Parties to comply
with the terms hereof or for any of its Related Secured Parties taking any action contrary to the terms hereof.
(d) Each
acknowledgement, agreement, consent and waiver (whether express or implied) in this Agreement made by any Additional Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to
such Additional Collateral Agent pursuant to the authorization thereof under the Additional First Lien Obligations Documents relating to such Class of First Lien Obligations. It is understood and agreed that no Additional Collateral Agent shall
be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties is in compliance with the terms of this Agreement, and no party hereto or any other Secured Party shall have any right of action whatsoever
against the Additional Collateral Agent for any failure of any of its Related Secured Parties to comply with the terms hereof or for any of its Related Secured Parties taking any action contrary to the terms hereof.
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ARTICLE II
Lien Priorities; Proceeds
SECTION 2.01 Relative Priorities.
(a) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Lien on any Shared
Collateral securing any First Lien Obligation, and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any other applicable law or any Secured Credit Document, or any other circumstance whatsoever (but, in each case,
subject to Section 2.01(b) and Section 2.02 of this Agreement), the Collateral Agent under each Class, for itself and on behalf of its Related Secured Parties, agrees that Liens on any Shared Collateral securing First Lien Obligations of
such Class shall be of equal priority.
(b) Each Collateral Agent, for itself and on behalf of its Related Secured
Parties, agrees that, notwithstanding (x) any provision of any Secured Credit Document to the contrary (but subject to Section 2.02 of this Agreement) and (y) the date, time, method, manner or order of grant, attachment or perfection
of any Lien on any Shared Collateral securing any Class of First Lien Obligation, and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any other applicable law or any Secured Credit Document, or any other
circumstance whatsoever (but, in each case, subject to Section 2.02 of this Agreement), if an Event of Default has occurred and is continuing and (i) such Collateral Agent or any of its Related Secured Parties takes any action to enforce
rights or exercise remedies in respect of any Shared Collateral (including any such action referred to in Section 3.01(a) of this Agreement), (ii) any distribution is made in respect of any Shared Collateral in any Insolvency or Liquidation
Proceeding of any Borrower or any other Grantor (including any adequate protection payments) or (iii) such Collateral Agent or any of its Related Secured Parties receives any payment with respect to any Shared Collateral pursuant to any
intercreditor agreement (other than this Agreement), then the proceeds or distributions of any sale, collection or other liquidation of any Shared Collateral obtained by such Collateral Agent or any of its Related Secured Parties on account of such
enforcement of rights or exercise of remedies, and any such distributions or payments received by such Collateral Agent or any of its Related Secured Parties (all such proceeds, distributions and payments being collectively referred to as
“Proceeds”), shall be applied as follows:
(i) FIRST, to the payment of all amounts owing to and all
costs and expenses incurred by any Collateral Agent or any Agents/Trustees (in each case, in their capacities as such), pursuant to the terms of any Secured Credit Document or in connection with any enforcement of rights or exercise of remedies
pursuant thereto, including all court costs and the reasonable documented fees and expenses of agents and legal counsel and, in each case, including all costs and expenses incurred in enforcing its rights to obtain such payment;
(ii) SECOND, subject to Section 2.02 of this Agreement, to the payment in full of all First Lien Obligations of each
Class secured by a Lien on such Shared Collateral at the time due and payable (the amounts so applied to be distributed, as among such Classes of First Lien Obligations, ratably in accordance with the amounts of the First Lien Obligations of
each such Class on the date of such application); provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of
this clause SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under
Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Class of First
Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other
Bankruptcy Law in such Insolvency or Liquidation Proceeding; and
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(iii) THIRD, after payment in full of all the First Lien Obligations, to the
Borrowers and the other Grantors or their successors or assigns, as their interests may appear, or as a court of competent jurisdiction may direct.
(c) For the avoidance of doubt, any amounts to be distributed pursuant to this Section 2.01 shall be distributed by the
Controlling Collateral Agent to each Non-Controlling Collateral Agent for further distribution to its Related Secured Parties.
(d) It is acknowledged that the First Lien Obligations of any Class may, subject to the limitations set forth in the then
extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in
Section 2.01(b) of this Agreement or the provisions of this Agreement defining the relative rights of the Secured Parties of any Class.
SECTION 2.02 Impairments. It is the intention of the parties hereto that the Secured Parties of any given Class of First Lien
Obligations (and not the Secured Parties of any other Class of First Lien Obligations) bear the risk of any determination by a court of competent jurisdiction that (i) any First Lien Obligations of such Class of First Lien Obligations
are unenforceable under applicable law or are subordinated to any other obligations (other than to any First Lien Obligations), (ii) the Secured Parties of such Class of First Lien Obligations do not have a Lien on any of the Collateral
securing any First Lien Obligations of any other Class of First Lien Obligations and/or (iii) any Person (other than any Collateral Agent or Secured Party) has a Lien on any Shared Collateral that is senior in priority to the Lien on such
Shared Collateral securing First Lien Obligations of such Class of First Lien Obligations, but junior to the Lien on such Shared Collateral securing any other Class of First Lien Obligations (any such Lien being referred to as an
“Intervening Lien”, and any such Person being referred to as an “Intervening Creditor”) (any condition with respect to First Lien Obligations of such Class of First Lien Obligations being referred to as an
“Impairment” of such Class); provided that the existence of a maximum claim with respect to any real property subject to a mortgage that applies to all First Lien Obligations shall not be deemed to be an Impairment of any
Class of First Lien Obligations. In the event an Impairment exists with respect to First Lien Obligations of any Class, the results of such Impairment shall be borne solely by the Secured Parties of such Class of First Lien Obligations,
and the rights of the Secured Parties of such Class of First Lien Obligations (including the right to receive distributions in respect of First Lien Obligations of such Class of First Lien Obligations pursuant to Section 2.01(b) of
this Agreement) set forth herein shall be modified to the extent necessary so that the results of such Impairment are borne solely by the Secured Parties of such Class. In furtherance of the foregoing, in the event First Lien Obligations of any
Class of First Lien Obligations shall be subject to an Impairment in the form of an Intervening Lien of any Intervening Creditor, the value of any Shared Collateral or Proceeds that are allocated to such Intervening Creditor shall be deducted
solely from the Shared Collateral or Proceeds to be distributed in respect of First Lien Obligations of such Class.
SECTION 2.03
Payment Over. Each Collateral Agent of each Class, on behalf of itself and its Related Secured Parties, agrees that if such Collateral Agent or any of its Related Secured Parties shall at any time obtain possession of any Shared Collateral or
receive any Proceeds (other than as a result of any application of Proceeds pursuant to Section 2.01(b) of this Agreement), then it shall hold such Shared Collateral or Proceeds in trust for the other Secured Parties and promptly transfer such
Shared Collateral or Proceeds, as the case may be, to the Controlling Collateral Agent, to be distributed in accordance with the provisions of Section 2.01(b) hereof.
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SECTION 2.04 Determinations with Respect to Amounts of Obligations and Liens.
Whenever the Collateral Agent of any Class shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any other Class,
or the Shared Collateral subject to any Lien securing the First Lien Obligations of any other Class (and whether such Lien constitutes a valid and perfected Lien), it may request that such information be furnished to it in writing by the Collateral
Agent of such other Class and shall be entitled to make such determination on the basis of the information so furnished; provided that if, notwithstanding the request of the Collateral Agent of such Class, the Collateral Agent of such other
Class shall fail or refuse reasonably promptly to provide the requested information, the Collateral Agent of such Class shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment,
determine, including by reliance upon a certificate of an Authorized Officer of the Parent Borrower. Each Collateral Agent may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the
provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any Secured Party or any other Person as a result of such determination or any action taken or not taken
pursuant thereto.
SECTION 2.05 Exculpatory Provisions. Without limitation of Article VI, none of the Collateral Agents or any
Secured Parties shall be liable for any action taken or omitted to be taken by any Collateral Agent or Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement.
ARTICLE III
Rights and
Remedies; Matters Relating to Shared Collateral
SECTION 3.01 Exercise of Rights and Remedies.
(a) Only the Controlling Collateral Agent shall act or refrain from acting with respect to any Shared Collateral (including
with respect to any intercreditor agreement with respect to any junior Liens on Shared Collateral). No Non-Controlling Collateral Agent nor any Non-Controlling Secured
Party shall commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or
power as a secured creditor with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor
agreement with respect to junior Liens on any Shared Collateral), whether under any Secured Credit Document, applicable law or otherwise, it being agreed that only the Controlling Collateral Agent, acting in accordance with the applicable Secured
Credit Documents, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral at any time. Without limitation of the foregoing, (A) in any Insolvency or Liquidation Proceeding commenced by or
against any Borrower or any other Grantor, each Collateral Agent or any of its Related Secured Parties may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation
Proceeding commenced by or against any Borrower or any other Grantor, each Collateral Agent or its Related Secured Parties may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading
filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Collateral Agent or Related Secured Party, (C) except as otherwise set forth in this Agreement, each Collateral Agent or its Related Secured Parties
may file any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of any Borrower or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable
non-bankruptcy law, (D) subject to clause (E) of this section 3.01(a), each Collateral Agent and its
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Related Secured Parties may propose, support, vote in favor of or otherwise directly or indirectly support any Plan of Reorganization, plan support agreement, restructuring support agreement, or
similar arrangement relating to any Borrower or any other Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement or the
terms of the Security Documents applicable to such Collateral Agent (it being understood that, with respect to clause (D), providing non-ratable allocation of consideration to any Class of First Lien
Obligations then outstanding (as compared to any other Class of First Lien Obligations) under a Plan of Reorganization, plan support agreement, restructuring support agreement or similar arrangement would be inconsistent with the terms of this
Agreement) and (E) no Collateral Agent nor any of its Related Secured Parties may propose, support, vote in favor of or otherwise directly or indirectly support any Plan of Reorganization, plan support agreement, restructuring support
agreement, or similar arrangement relating to any Borrower or any other Grantor, in each case, that provides for non-ratable allocation of consideration to any Class of First Lien Obligations then
outstanding (as compared to any other Class of First Lien Obligations) or is otherwise inconsistent with the terms of this Agreement, in each case, unless the Required Secured Parties in respect of such differently and adversely treated
Class(es) of First Lien Obligations consents.
(b) Notwithstanding the equal priority of the Liens securing each
Class of First Lien Obligations with respect to the Shared Collateral, the Controlling Collateral Agent may deal with the Shared Collateral as if such Controlling Collateral Agent had a senior Lien on such Collateral. No Non-Controlling Collateral Agent or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Controlling Collateral
Agent or any Controlling Secured Party or any other exercise by the Controlling Collateral Agent or any Controlling Secured Party of any rights and remedies relating to the Shared Collateral. The foregoing shall not be construed to: (i) limit
the rights and priorities of any Secured Party or any Collateral Agent with respect to any Collateral not constituting Shared Collateral, (ii) impair any rights available to them as unsecured creditors or (iii) impair the rights of any Non-Controlling Collateral Agent or any Non-Controlling Secured Party to enforce this Agreement.
SECTION 3.02 Prohibition on Contesting Liens and Obligations. Each Collateral Agent agrees, on behalf of itself and its Related
Secured Parties, that neither such Collateral Agent nor any of its Related Secured Parties will, and each hereby waives any right to, contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation
Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any other Collateral Agent or any of its Related Secured Parties in all or any part of the Shared Collateral, the enforceability or
payment priority of any of the First Lien Obligations, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any such Collateral Agent or any of its Related Secured Parties
to enforce this Agreement.
SECTION 3.03 Prohibition on Challenging this Agreement. Each Collateral Agent agrees, on behalf of
itself and its Related Secured Parties, that neither such Collateral Agent nor any of its Related Secured Parties will attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of
this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any such Collateral Agent or any of its Related Secured Parties to enforce this Agreement.
SECTION 3.04 Release of Liens. The parties hereto agree and acknowledge that the release of Liens on any Shared Collateral
securing First Lien Obligations of any Class, whether in connection with a sale, transfer or other disposition of such Shared Collateral or otherwise, shall be governed by and subject to the Secured Credit Documents of such Class, and that nothing
in this Agreement shall be deemed to
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amend or affect the terms of the Secured Credit Documents of such Class with respect thereto; provided that if, at any time any Shared Collateral is transferred to a third party or otherwise
disposed of, in each case, in connection with any enforcement by the Controlling Collateral Agent in accordance with the provisions of this Agreement, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in
favor of the other Collateral Agents for the benefit of each Class of Secured Parties upon such Shared Collateral will automatically be released and discharged upon final conclusion of foreclosure proceeding as and when, but only to the extent,
such Liens on the Shared Collateral of the Controlling Collateral Agent are released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01(b) hereof. Each Collateral
Agent agrees, in accordance with the terms of the Secured Credit Documents of such Class, to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the any
other Collateral Agent to evidence and confirm any release of Shared Collateral provided for in this Section 3.04.
ARTICLE IV
Collateral
SECTION 4.01 Bailment for Perfection of Security Interests.
(a) The Possessory Collateral shall be delivered to the Bailee Agent and by accepting such Possessory Collateral such Bailee
Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other
Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Security Documents, in each case, subject to the terms and conditions of this
Section 4.01.
(b) The Bailee Agent shall (at the sole cost and expense of the Grantors), upon the Discharge of the
First Lien Obligations with respect to which such Collateral Agent is the Collateral Agent, transfer the possession and control of the Possessory Collateral, together with any necessary endorsements but without recourse or warranty, to the successor
Bailee Agent. In connection with any transfer under the foregoing sentence by any Collateral Agent, such transferor Collateral Agent agrees to take all actions in its power as shall be necessary or reasonably requested by the transferee Collateral
Agent to permit the transferee Collateral Agent to obtain, for the benefit of its Related Secured Parties, a first priority security interest in the applicable Possessory Collateral. The Borrowers and the other Grantors shall take such further
action as is required to effectuate the transfer contemplated hereby and shall indemnify each Collateral Agent for loss or damage suffered by such Collateral Agent as a result of such transfer, except for loss or damage suffered by such Collateral
Agent as a result of its own willful misconduct or gross negligence, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(c) Each Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its
possession, as gratuitous bailee for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Security Documents,
in each case, subject to the terms and conditions of this Section 4.01.
(d) The duties or responsibilities of each
Collateral Agent under this Section 4.01 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other Secured Party for purposes of perfecting the Lien held by
such Secured Parties thereon.
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SECTION 4.02 Delivery of Documents. Promptly after the execution and delivery to
any Collateral Agent by any Grantor of any Security Document (other than (a) any Security Document in effect on the date hereof and (b) any Additional First Lien Obligations Document referred to in paragraph (b) of Article IX,
but including any amendment, amendment and restatement, waiver or other modification of any such Security Document or Additional First Lien Obligations Document), the Parent Borrower shall deliver to each Collateral Agent party hereto at such time a
copy of such Security Document.
ARTICLE V
Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings
SECTION 5.01 Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any Insolvency or Liquidation
Proceeding against any Borrower or any other Grantor, and the parties hereto acknowledge that this Agreement is intended to be and shall be enforceable as a “subordination” agreement under Bankruptcy Code Section 510(a) or
any equivalent provision of any other Bankruptcy Law. All references herein to any Grantor shall apply to any trustee for such Person and such Person as a
debtor-in-possession.
(b) If any Borrower
and/or any other Grantor shall become subject to a case (a “Bankruptcy Case”) under the Bankruptcy Code or other applicable Bankruptcy Law, the following provisions shall apply with respect to any debtor-in-possession financing (“DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any equivalent
provision of any other Bankruptcy Law and any use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law:
(i) each Secured Party must be offered the right to participate ratably (based on the proportion that the outstanding principal
amount of First Lien Obligations held by such Secured Party bears to the aggregate outstanding principal amount of all First Lien Obligations) in any DIP Financing on the same terms (including economics and adequate protection) and conditions as any
DIP Lender, other than reasonable and customary bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such DIP Financing;
(ii) the Parent Borrower shall provide notice of such DIP Financing to each Collateral Agent at least five business days before
entry into such DIP Financing, which notice shall include a reasonably detailed summary of such DIP Financing;
(iii) no
First Lien Obligations may be “rolled up” into or refinanced with any DIP Financing on a greater than 1:1 basis (measured by the ratio of the aggregate principal amount of First Lien Obligations being rolled up or refinanced to the
aggregate principal amount of new money being provided in connection with such DIP Financing) without the consent of the Required Secured Parties of each Class of First Lien Obligations then outstanding;
(iv) except as otherwise provided in this Section 5.01(b), any provision of any DIP Financing that provides adverse and
different treatment with respect to any Class of First Lien Obligations compared to any other Class of First Lien Obligations (or otherwise in an adverse manner that is inconsistent with this Agreement) shall require the consent of the
Required Secured Parties of such adversely and differently treated Class;
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(v) each of the Collateral Agents (other than, in each case, the Collateral
Agent that is the Controlling Collateral Agent) agrees (on behalf of itself and its Related Secured Parties) that it will raise no objection to any DIP Financing or to the Liens on the Shared Collateral securing the same (“DIP Financing
Liens”) unless the Controlling Collateral Agent shall then oppose or object to such DIP Financing and/or such DIP Financing Liens, or such DIP Financing does not otherwise comply with this Section 5.01(b) (and (i) to the extent
that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Collateral Agent agrees (on behalf of itself and its
Related Secured Parties) that it will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any Secured Parties constituting DIP Financing Liens) are
subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling Secured Parties, each Non-Controlling
Collateral Agent will confirm the priorities with respect to such Shared Collateral as set forth herein); provided, in each case, that (A) the Secured Parties of each Class retain the benefit of their Liens on all such Shared Collateral
pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Secured
Parties (other than any Liens of the Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the Secured Parties of each Class are granted Liens on any additional collateral
pledged to any Secured Parties as adequate protection or otherwise in connection with such DIP Financing, with the same priority vis-à-vis the Secured Parties as
set forth in this Agreement (other than any Liens of the Secured Parties constituting DIP Financing Liens), (C) except as permitted by clause (iii) above, if any amount of such DIP Financing is applied to repay any of the First Lien
Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing, the proceeds
of such adequate protection are applied pursuant to Section 2.01 of this Agreement; provided, further, that this Agreement shall not limit the right of the Secured Parties of each Class to object to the grant of a Lien to secure the DIP
Financing over any Collateral subject to Liens in favor of the Secured Parties of such Class or the Collateral Agent with respect thereto that shall not constitute Shared Collateral; and provided, further, however, that each Collateral Agent
agrees (on behalf of itself and its Related Secured Parties) not to object to any other Secured Party receiving adequate protection comparable to any adequate protection granted to such Secured Parties in connection with a DIP Financing permitted by
this paragraph; and
(vi) in respect of the use of cash collateral under Section 363 of the Bankruptcy Code or any
equivalent provision of any other Bankruptcy Law, to the extent that such cash collateral constitutes Shared Collateral (for the avoidance of doubt, other than the cash proceeds of any DIP Financing or any post-petition cash receipts, which shall be
subject to the preceding clauses of this Section 5.01(b), mutatis mutandis), shall be subject to the consent of the Required Secured Parties of each Class of First Lien Obligations then outstanding.
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ARTICLE VI
The Controlling Collateral Agent
SECTION 6.01 The Controlling Collateral Agent
(a) Each of the Secured Parties hereby irrevocably appoints and authorizes the Controlling Collateral Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Controlling Collateral Agent by the terms hereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Grantors to secure
any of the First Lien Obligations, together with such powers and discretion as are reasonably incidental thereto. Each of Secured Parties hereby agrees to provide such cooperation and assistance as may be reasonably requested by the Controlling
Collateral Agent to facilitate and effect actions taken or intended to be taken by the Controlling Collateral Agent pursuant to this Article VI, such cooperation to include execution and delivery of notices, instruments and other documents as are
reasonably deemed necessary by the Controlling Collateral Agent to effect such actions, and joining in any action, motion or proceeding initiated by the Controlling Collateral Agent for such purposes. Notwithstanding any other provision of this
Agreement, nothing herein shall be construed to impose any fiduciary or other duty on any Controlling Collateral Agent to any Non-Controlling Secured Party or give any
Non-Controlling Secured Party the right to direct any Controlling Collateral Agent, except that each Controlling Collateral Agent shall be obligated to distribute proceeds of any Shared Collateral in
accordance with Section 2.01(b) hereof.
(b) In furtherance of the foregoing, each
Non-Controlling Secured Party acknowledges and agrees that the Controlling Collateral Agent shall be entitled, for the benefit of the Secured Parties, to sell, transfer or otherwise dispose of or deal with any
Shared Collateral as provided herein and in the Security Documents, as applicable, pursuant to which the Controlling Collateral Agent is the collateral agent for such Shared Collateral, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled as a result of the First Lien Obligations held by such Non-Controlling Secured Parties. Without limiting the
foregoing, each Non-Controlling Secured Party agrees that none of the Controlling Collateral Agent or any other Controlling Secured Party shall have any duty or obligation first to marshal or realize upon any
type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations),
in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of
proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Except with respect to any actions expressly prohibited or required to be taken by
this Agreement, each Class of Secured Parties waives any claim it may now or hereafter have against any Collateral Agent or any other Secured Party of any other Class arising out of (i) any actions which any Collateral Agent or
Secured Party takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon,
any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with the Security Documents or any other agreement
related thereto or to the collection of the First Lien Obligations or the valuation, use, protection or release of any security for the First Lien Obligations, (ii) any election by any Collateral Agent or any holders of First Lien Obligations,
in any Insolvency or Liquidation Proceeding of the application of Section 1111(b) of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law or (iii) subject to Section 5.01, any borrowing
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by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, by the Parent
Borrower or any of its Subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Controlling Collateral Agent shall not accept
any Shared Collateral in full or partial satisfaction of any First Lien Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Collateral
Agent representing holders of First Lien Obligations for whom such Collateral constitutes Shared Collateral.
(c) Without
limiting Section 6.01(a) above, upon request of the Parent Borrower or any Collateral Agent from time to time, in order to ascertain the Controlling Class or directions of the Required Secured Parties of each Class that remains
outstanding, as applicable, at any such time, each Agent/Trustee shall certify (and each applicable Secured Party undertakes to direct the applicable Agent/Trustee to certify) to the Parent Borrower and each Collateral Agent (and the Parent Borrower
and each Collateral Agent shall be entitled to conclusively rely on any such certification):
(i) the Credit Participations
of First Lien Obligations of its Related Secured Parties (which shall be calculated at the time stipulated in such request); and
(ii) if applicable, (x) the details of the extent to which the Credit Participations of its Related Secured Parties have
been voted for or against any matter specified in such request and (y) whether the Required Secured Parties of its Class have voted for or against any matter specified in such request.
(d) For the purpose of ascertaining any relevant amount or percentage of Credit Participations, the Agents/Trustees shall
notionally convert the Credit Participations into the Common Currency at the rate for conversion into the Common Currency specified in the relevant Secured Credit Document.
(e) The Controlling Collateral Agent shall not have any duties or obligations to any
Non-Controlling Secured Party except those expressly set forth herein. Without limiting the generality of the foregoing, the Controlling Collateral Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and
is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby; provided that the Controlling Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Controlling Collateral Agent to
liability or that is contrary to this Agreement or applicable law;
(iii) shall not, except as expressly set forth herein,
have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to a Grantor or any of its Affiliates that is communicated to or obtained by the Person serving as the Controlling Collateral Agent or any of
its Affiliates in any capacity;
(iv) shall not, except as expressly set forth herein, be liable for any action taken or
not taken by it (1) in the absence of its own gross negligence or willful misconduct (as determined by a final non-appealable order of a court of competent jurisdiction) or (2) in reliance on a
certificate from the Parent Borrower stating that such action is permitted by the terms of this Agreement. The Controlling Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Class of First Lien Obligations
unless and until notice describing such Event of Default and referencing the applicable Secured Credit Documents is given to the Controlling Collateral Agent;
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(v) shall not be responsible for or have any duty to ascertain or inquire
into (1) any statement, warranty or representation made in or in connection with this Agreement or any other Secured Credit Document, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (3) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (4) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents,
(5) the value or the sufficiency of any Collateral for any Class of First Lien Obligations, or (6) the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required
to be delivered to the Controlling Collateral Agent; and
(vi) need not segregate money held hereunder from other funds
except to the extent required by law and shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing.
ARTICLE VII
Other Agreements
SECTION 7.01 Concerning Secured Credit Documents and Collateral.
(a) The Secured Credit Documents of any Class may be Amended, in whole or in part, in accordance with their terms, in each
case without notice to or the consent of the Collateral Agent or any Secured Parties of any other Class; provided that nothing in this paragraph shall affect any limitation on any such Amendment that is set forth in the Secured Credit Documents of
any such other Class.
(b) The Grantors agree that they shall not grant to any Person any Lien on any Shared Collateral
securing First Lien Obligations of any Class other than through the Collateral Agent of such Class (it being understood that the foregoing shall not be deemed to prohibit grants of set-off rights to
Secured Parties of any Class).
(c) The Grantors agree that they shall not, and shall not permit any Subsidiary to, grant
or permit or suffer to exist any additional Liens (unless otherwise permitted under each Secured Credit Document) on any asset or property to secure any Class of First Lien Obligations unless it has granted a Lien on such asset or property to
secure each other Class of First Lien Obligations; provided, that to the extent the foregoing is not complied with for any reason, without limiting any other rights and remedies available to the Secured Parties of any Class, each such Secured
Party agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 7.01(c) shall be subject to Article II.
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SECTION 7.02 Refinancings. The First Lien Obligations of any Class may be
increased or Refinanced (including, for the avoidance of doubt, any additional Indebtedness incurred to pay premiums (including tender premiums), defeasance costs, and accrued interest, fees and expenses in connection with such Refinancing), in
whole or in part, in each case, without notice to, or the consent of the Collateral Agent or any Secured Party of any other Class, all without affecting the priorities provided for herein or the other provisions hereof, so long as permitted by the
terms of each Secured Credit Document; provided, that if any obligations of the Grantors in respect of such Refinancing indebtedness shall be secured by Liens on any Shared Collateral, such obligations and the holders thereof shall be subject to and
bound by the provisions of this Agreement and, if not already, the collateral agent under such obligations shall become a party hereto by executing and delivering a Collateral Agent Joinder Agreement.
SECTION 7.03 Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise, all or part of any payment with respect
to the First Lien Obligations of any Class previously made shall be avoided or rescinded for any reason whatsoever (including an order or judgment for disgorgement of a preference, fraudulent transfer or other avoidance action under the
Bankruptcy Code, other applicable Bankruptcy Law, or any similar law), then the terms and conditions of this Agreement shall be fully applicable thereto until all the First Lien Obligations of such Class shall again have been satisfied in full.
SECTION 7.04 Reorganization Modifications. In the event the First Lien Obligations of any Class are modified pursuant to
applicable law, including Section 1129 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, any reference to the First Lien Obligations of such Class or the Secured Credit Documents of such Class shall refer
to such obligations or such documents as so modified.
SECTION 7.05 Further Assurances. Each of the Collateral Agents and the
Grantors agrees that it will execute, or will cause to be executed, such reasonable further documents, agreements and instruments, and take all such reasonable further actions, as may be required under any applicable law, or which any Collateral
Agent may reasonably request, to effectuate the terms of this Agreement.
SECTION 7.06 Purchase Right. Following (a) the
acceleration of all First Lien Obligations in accordance with the terms of the Secured Credit Documents or (b) the commencement of an Insolvency or Liquidation Proceeding (each, a “Purchase Event”), the applicable Purchasing
Secured Parties in respect of such Purchase Event shall have the right to purchase, upon written notice to the applicable Selling Secured Parties, solely for so long as such Class of Secured Parties constitute the Purchasing Secured Parties,
and the Secured Parties, of the other Classes (the “Selling Secured Parties”) hereby offer the applicable Purchasing Secured Parties the option, to purchase all, but not less than all, of the aggregate amount of outstanding First
Lien Obligations of the Selling Secured Parties outstanding at the time of purchase at par, plus any premium, if any, that would be applicable upon prepayment of such First Lien Obligations and accrued and unpaid interest, fees, and expenses,
without warranty or representation or recourse (except for representations and warranties required to be made by assigning lenders or noteholders pursuant to any Secured Credit Document); provided that no Secured Party shall have an
obligation to participate in the making of such an offer to purchase the outstanding First Lien Obligations of the Selling Secured Parties. If such right is exercised, the parties shall endeavor to close promptly thereafter but in any event within
ten (10) Business Days of the request. If one or more of the Secured Parties exercise such purchase right, it shall be exercised pursuant to documentation mutually acceptable to the applicable Purchasing Secured Parties, Selling Secured Parties
and Collateral Agents. If none of the Purchasing Secured Parties exercise such right prior to the Purchase Event Expiration Date in respect of such Purchase Event, the Secured Parties shall have no further obligations pursuant to this
Section 7.06 for such Purchase Event and may take any further actions in their sole discretion in accordance with the Secured Credit Documents and this Agreement.
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ARTICLE VIII
No Reliance; No Liability
SECTION 8.01 No Reliance; Information. Each Collateral Agent, on behalf of its Related Secured Parties, acknowledges that
(a) its Related Secured Parties have, independently and without reliance upon any Collateral Agent or any Related Secured Parties, and based on such documents and information as they have deemed appropriate, made their own credit analysis and
decision to enter into the Secured Credit Documents to which they are party and (b) its Related Secured Parties will, independently and without reliance upon any Collateral Agent or any of its Related Secured Parties, and based on such
documents and information as they shall from time to time deem appropriate, continue to make their own credit decision in taking or not taking any action under this Agreement or any other Secured Credit Document. The Collateral Agent or Secured
Parties of any Class shall have no duty to disclose to any Collateral Agent or any Secured Party of any other Class any information relating to any Borrower or any of the Grantors or their Subsidiaries, or any other circumstance bearing
upon the risk of nonpayment of any of the First Lien Obligations, that is known or becomes known to any of them or any of their Affiliates. If the Collateral Agent or any Secured Party of any Class, in its sole discretion, undertakes at any time or
from time to time to provide any such information to, as the case may be, the Collateral Agent or any Secured Party of any other Class, it shall be under no obligation (i) to make, and shall not be deemed to have made, any express or implied
representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of the information so provided, (ii) to provide any additional information or to provide any such information on any subsequent occasion
or (iii) to undertake any investigation.
SECTION 8.02 No Warranties or Liability.
(a) Each Collateral Agent, for itself and on behalf of its Related Secured Parties, acknowledges and agrees that no Collateral
Agent or Secured Party of any other Class has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Secured Credit
Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The Collateral Agent and the Secured Parties of any Class will be entitled to manage and supervise their loans and other extensions of credit
in the manner set forth in their Related Secured Credit Documents. No Collateral Agent of any Class shall, by reason of this Agreement, any other Security Document or any other document, have a fiduciary relationship or other implied duties in
respect of any other Collateral Agent or any other Secured Party.
(b) No Collateral Agent or Secured Parties of any
Class shall have any express or implied duty to the Collateral Agent or any Secured Party of any other Class to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of a Default or an Event of
Default under any Secured Credit Document (other than, in each case, this Agreement), regardless of any knowledge thereof that they may have or be charged with.
SECTION 8.03 Rights of Collateral Agents. Notwithstanding anything contained herein to the contrary, each of (a) the RCF
Collateral Agent shall be entitled to the same rights, protections, immunities and indemnities as set forth in the RCF Credit Agreement, (b) the TLB Collateral Agent shall be entitled to the same rights, protections, immunities and indemnities
as set forth in the TLB Credit Agreement and (c) the First Lien Notes Collateral Agent is entering into this Agreement in its capacity as Notes Collateral Agent under the First Lien Notes Indenture and shall be entitled to the same rights,
protections, immunities and indemnities as set forth in the First Lien Notes Indenture, in each case, as if the provisions setting forth those rights, protections, immunities and indemnities are fully set forth herein.
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ARTICLE IX
Additional First Lien Obligations
The Borrowers and the other Grantors may from time to time, subject to any limitations contained in any Secured Credit Documents in effect at
such time, incur and designate additional indebtedness and related obligations that are, or are to be, secured by Liens on any assets of the Borrowers or any of the other Grantors that would, if such Liens were granted, constitute Shared Collateral
as Additional First Lien Obligations by delivering to each Collateral Agent party hereto at such time a certificate of an Authorized Officer of the Parent Borrower:
(a) describing the indebtedness and other obligations being designated as Additional First Lien Obligations, and including a
statement of the maximum aggregate outstanding principal amount of such indebtedness as of the date of such certificate;
(b) setting forth a summary of the Additional First Lien Obligations Documents under which such Additional First Lien
Obligations are or will be issued or incurred or the guarantees of or Liens securing such Additional First Lien Obligations are, or are to be, granted or created, and attaching copies of such Additional First Lien Obligations Documents as each
Grantor has executed and delivered to the Person that serves as the collateral agent, collateral trustee or a similar representative for the holders of such Additional First Lien Obligations (such Person being referred to as the “Additional
Collateral Agent”) with respect to such Additional First Lien Obligations on the closing date of such Additional First Lien Obligations, certified as being true and complete in all material respects by an Authorized Officer of the Parent
Borrower;
(c) identifying the Person that serves as the Additional Collateral Agent;
(d) certifying that the incurrence of such Additional First Lien Obligations, the creation of the Liens securing such
Additional First Lien Obligations and the designation of such Additional First Lien Obligations as “Additional First Lien Obligations” hereunder do not or will not violate or result in a Default under any provision of any Secured
Credit Document of any Class in effect at such time;
(e) certifying that the Additional First Lien Obligations
Documents authorize the Additional Collateral Agent to become a party hereto by executing and delivering a Collateral Agent Joinder Agreement and provide that, upon such execution and delivery, such Additional First Lien Obligations and the holders
thereof shall become subject to and bound by the provisions of this Agreement; and
(f) attaching a fully completed
Collateral Agent Joinder Agreement executed and delivered by the Additional Collateral Agent.
Upon the delivery of such certificate and the related
attachments as provided above and as so long as the statements made therein are true and correct as of the date of such certificate, the obligations designated in such notice shall become Additional First Lien Obligations for all purposes of this
Agreement. Notwithstanding anything herein contained to the contrary, each Collateral Agent may conclusively rely on such certificate delivered by the Parent Borrower, and upon its receipt of such certificate, each Collateral Agent shall execute the
Collateral Agent Joinder Agreement evidencing its acknowledgment thereof, and shall incur no liability to any Person for such execution.
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ARTICLE X
Miscellaneous
SECTION 10.01 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:
(a) if to the
Borrowers or any Grantor, to the Parent Borrower, at its address at:
Accendra Health, Inc.
435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Jonathan A. Leon, Executive Vice President & Chief Financial Officer; Heath H. Galloway, Executive Vice President, General
Counsel & Corporate Secretary
Email: [***]
and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention:
Thomas J. Dobleman, P.C.
Email: thomas.dobleman@kirkland.com
and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York,
NY 10022
Attention: Paul L. Sandler, P.C.
Email: paul.sandler@kirkland.com
(b) if to the RCF Collateral Agent, to it at:
Bank of America, N.A.
Agency
Management
4500 Amon Carter Blvd.
Mail Code:
TX2-979-02-22
Fort
Worth, TX 76155
Attention: Jennifer Toney, Katie Pounds and Darren Merten
Telephone: (469) 201-9415
Facsimile: (214) 209-9581
Email: jennifer.toney@bofa.com; kathryn.pounds@bofa.com; darren.merten@bofa.com
(c) if to the TLB Collateral Agent, to it at:
JPMorgan Chase Bank, N.A.
WLS -
Document Workflow Management
10 South Dearborn Street - Floor L2
Mail Code IL1-1190
Chicago, IL 60603
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(d) if to the First Lien Notes Collateral Agent, to it at:
Regions Bank
1180 West Peachtree
Street NW, Suite 1400
Atlanta, GA 30309
Attention: Corporate Trust Department
(e) if to any Additional Collateral Agent, to it at the address set forth in the applicable Collateral Agent Joinder Agreement.
Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases)
if delivered by hand or overnight courier service or sent by facsimile or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided
in this Section 10.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 10.01. As agreed to in writing by any party hereto from time to time, notices and other communications to such
party may also be delivered by e-mail to the e-mail address of a representative of such party provided from time to time by such party.
SECTION 10.02 Waivers; Amendment; Joinder Agreements.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section 10.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any
party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or otherwise modified except as contemplated by the
Secured Credit Documents and then pursuant to an agreement or agreements in writing entered into by each Collateral Agent then party hereto and the Parent Borrower; provided that without any action or consent of any Collateral Agent (i) (A)
this Agreement may be supplemented by a Collateral Agent Joinder Agreement, and an Additional Collateral Agent may become a party hereto, in accordance with Article IX and (B) this Agreement may be supplemented by a Grantor Joinder
Agreement, and a Subsidiary may become a party hereto, in accordance with Section 10.12, (ii) in connection with any Refinancing of First Lien Obligations of any Class, the Collateral Agents then party hereto shall enter (and are hereby
authorized to enter without the consent of any other Secured Party), at the request of any Collateral Agent or the Parent Borrower, into such amendments or modifications of this Agreement as are reasonably necessary to reflect such Refinancing;
provided that such Collateral Agent shall not be required to enter into such amendments or modifications unless it shall have received a certificate of an Authorized Officer of the Parent Borrower certifying that such Refinancing is permitted
26
hereunder and (iii) the Parent Borrower may amend this Agreement to reflect any technical changes to Section 7.06 and its component definitions that are necessary or appropriate to give
effect to the designation of any Additional First Lien Obligations hereunder in a manner consistent with the definition of “Purchasing Secured Parties” as in effect as of the date hereof.
SECTION 10.03 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto (and their
Related Secured Parties) and their respective successors and assigns. No other Person shall have or be entitled to assert rights or benefits hereunder.
SECTION 10.04 Effectiveness; Survival. This Agreement shall become effective when executed and delivered by the parties hereto.
All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 10.05 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or other electronic communication (including “.pdf” or “.tif”
files) shall be as effective as delivery of a manually signed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of similar import in this Agreement or any
notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and
enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000, the
Electronic Signatures and Records Act of 1999, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 10.06 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.07
Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Each party hereto irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in the Borough of Manhattan, New York County and of the United States District Court for the Southern District of New York sitting in the
Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto or any Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement against any party hereto or its properties in the courts of any jurisdiction.
27
(c) Each party hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of
this Section 10.07. Each party hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.01, such
service to be effective upon receipt. Nothing in this Agreement will affect the right of any party hereto or any Secured Party to serve process in any other manner permitted by law.
SECTION 10.08 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.09
Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 10.10 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions
of any other Secured Credit Documents, the provisions of this Agreement shall control.
SECTION 10.11 Provisions Solely to Define
Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Secured Parties, the Borrowers and the Grantors in relation to one another. Nothing in this Agreement is
intended to or shall impair the obligations of any Borrower or any other Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance with their terms. For the
avoidance of doubt, nothing contained herein shall be construed to constitute a waiver or an amendment of any covenant of any Borrower or any other Grantor contained in any Secured Credit Document, which restricts the incurrence of any Indebtedness
or the grant of any Lien.
SECTION 10.12 Additional Grantors. In the event any Subsidiary shall have granted a Lien on any of
its assets to secure any First Lien Obligations, the Parent Borrower shall cause such Subsidiary, if not already a party hereto, to become a party hereto as a “Grantor”. Upon the execution and delivery by any Subsidiary of a
Grantor Joinder Agreement, any such Subsidiary shall become a party hereto and a Grantor hereunder with the same force and effect as if originally named as such herein. The execution and delivery of any such instrument shall not require the consent
of any other party hereto. The rights and obligations of each party hereto shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
28
SECTION 10.13 Specific Performance. Each Collateral Agent of any Class, on
behalf of itself and its Related Secured Parties, may demand specific performance of this Agreement. Each Collateral Agent of any Class, on behalf of itself and its Related Secured Parties, hereby irrevocably waives any defense based on the adequacy
of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action which may be brought by the Secured Parties.
SECTION 10.14 Amendment and Restatement. This Agreement amends and restated the Existing Intercreditor Agreement in its entirety
and on and from the date hereof, the Existing Intercreditor Agreement shall be read and construed for all purposes as set out in this Agreement.
SECTION 10.15 Integration. This Agreement, together with the other Secured Credit Documents, represents the agreement of each of
the Grantors and the Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, any Collateral Agent or any other Secured Party relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Secured Credit Documents.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
BANK OF AMERICA, N.A.,
in its capacity as RCF Collateral Agent
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
in its capacity as TLB Collateral Agent
By:
Name:
Title:
REGIONS BANK,
in its capacity as First Lien Notes Collateral Agent
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
ACCENDRA HEALTH, INC.,
as the Parent Borrower
By:
Name:
Heath H. Galloway
Title:
Executive Vice President
APRIA, INC.,
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC,
each as a Borrower
By:
Name:
Heath H. Galloway
Title:
Executive Vice President
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Michelle Knowles
Title:
Secretary
[Signature Page to
Amended and Restated First Lien Pari Passu Intercreditor Agreement]
O&M BYRAM HOLDINGS, GP, as a Grantor
By:
Barista Acquisition I, LLC; and
Barista Acquisition II, LLC
Its:
Partners
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HOLDINGS I, INC., as a Grantor
By:
Name: Michelle Knowles
Title: Secretary
APRIA HOLDCO LLC,
APRIA HEALTHCARE GROUP LLC,
APRIA HEALTHCARE LLC,
CPAP SLEEP STORE LLC,
HEALTHY LIVING HOME MEDICAL LLC,
LOFTA, each as a Grantor
By:
Name: Heath H. Galloway
Title: Executive Vice President
[Signature Page to
Amended and Restated First Lien Pari Passu Intercreditor Agreement]
EXHIBIT I
[FORM OF] COLLATERAL AGENT JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] (this
“Joinder Agreement”) to the AMENDED AND RESTATED FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of [•], 2026 (the “Intercreditor Agreement”), BANK OF AMERICA, N.A., as the RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A., as the TLB Collateral Agent, REGIONS BANK, as the First Lien Notes Collateral Agent, and each Additional Collateral Agent from time to time party thereto and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia
corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista
II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with the Parent Borrower, Barista I, Barista II and Apria, the
“Borrowers”), and the other Grantors party thereto.
A.
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms
in the Intercreditor Agreement.
B.
The Borrowers proposes to issue or incur Additional First Lien Obligations and the Person identified in the
signature pages hereto as the “Additional Collateral Agent” (the “Additional Collateral Agent”) will serve as the collateral agent, collateral trustee or a similar representative for the Additional Secured
Parties. The Additional First Lien Obligations are being designated as such by the Borrowers in accordance with Article IX of the Intercreditor Agreement.
C.
The Additional Collateral Agent wishes to become a party to the Intercreditor Agreement and to acquire and
undertake, for itself and on behalf of the Additional Secured Parties, the rights and obligations of an “Additional Collateral Agent” thereunder. The Additional Collateral Agent is entering into this Joinder Agreement in
accordance with the provisions of the Intercreditor Agreement in order to become an Additional Collateral Agent thereunder.
Accordingly, the Additional Collateral Agent and the Borrowers agree as follows, for the benefit of the Additional Collateral Agent, the
Borrowers and each other party to the Intercreditor Agreement:
SECTION 1 Accession to the Intercreditor Agreement. The Additional
Collateral Agent (a) hereby accedes and becomes a party to the Intercreditor Agreement as an Additional Collateral Agent for the Additional Secured Parties from time to time in respect of the Additional First Lien Obligations, (b) agrees,
for itself and on behalf of the Additional Secured Parties from time to time in respect of the Additional First Lien Obligations, to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations
of an Additional Collateral Agent under the Intercreditor Agreement.
SECTION 2 Counterparts. This Joinder Agreement may be
executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. This Joinder Agreement shall become effective when each Collateral Agent shall have received a counterpart
of this Joinder Agreement that bears the signature of the Additional Collateral Agent. Delivery of an executed signature page to this Joinder Agreement by facsimile transmission or other electronic communication (including “.pdf”
or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Joinder Agreement. The words “execution,” “signed,” “signature,” and words of similar import in this Joinder
Agreement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity
and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000,
the Electronic Signatures and Records Act of 1999, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 3 Benefit of Agreement. The agreements set forth herein or undertaken
pursuant hereto are for the benefit of, and may be enforced by, any party to the Intercreditor Agreement.
SECTION 4 Governing Law.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5
Severability. In case any one or more of the provisions contained in this Joinder Agreement should be held invalid, illegal or unenforceable in any respect, none of the parties hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The
parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 6 Notices. All communications and notices hereunder shall be in writing and given as provided in
Section 10.01 of the Intercreditor Agreement. All communications and notices hereunder to the Additional Collateral Agent shall be given to it at the address set forth under its signature hereto, which information supplements Section 10.01
of the Intercreditor Agreement.
SECTION 7 Expense Reimbursement. The Borrowers agree to reimburse each Collateral Agent for its
reasonable and invoiced out-of-pocket expenses in connection with this Joinder Agreement, including the reasonable and invoiced fees, other charges and disbursements of
counsel for each Collateral Agent.
IN WITNESS WHEREOF, the Additional Collateral Agent has duly executed this Joinder Agreement
to the Intercreditor Agreement as of the day and year first above written.
[NAME OF ADDITIONAL COLLATERAL AGENT],
as ADDITIONAL COLLATERAL AGENT for the ADDITIONAL SECURED PARTIES
By:
Name:
Title:
Address for notices:
attention of:
Telecopy:
ACKNOWLEDGED BY:
ACCENDRA HEALTH, INC., as the Parent Borrower
By:
Name:
Title:
APRIA, INC., as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC, as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC, as a Borrower
By:
Name:
Title:
BYRAM HEALTHCARE CENTERS, INC., as a Borrower
By:
Name:
Title:
O&M BYRAM HOLDINGS, GP, as a Grantor
By:
Name:
Title:
BYRAM HOLDINGS I, INC., as a Grantor
By:
Name:
Title:
APRIA HOLDCO LLC, as a Grantor
By:
Name:
Title:
APRIA HEALTHCARE GROUP LLC, as a Grantor
By:
Name:
Title:
APRIA HEALTHCARE LLC, as a Grantor
By:
Name:
Title:
CPAP SLEEP STORE LLC, as a Grantor
By:
Name:
Title:
HEALTHY LIVING HOME MEDICAL LLC, as a Grantor
By:
Name:
Title:
LOFTA, as a Grantor
By:
Name:
Title:
EXHIBIT II
[FORM OF] GRANTOR JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] (this
“Grantor Joinder Agreement”) to the AMENDED AND RESTATED FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of May [•], 2026 (the “Intercreditor Agreement”), among BANK OF AMERICA, N.A., as the RCF
Collateral Agent, JPMORGAN CHASE BANK, N.A., as the TLB Collateral Agent, REGIONS BANK, as the First Lien Notes Collateral Agent, and each Additional Collateral Agent from time to time party thereto and acknowledged and agreed by ACCENDRA HEALTH,
INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company
(“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with the Parent Borrower, Barista I, Barista II
and Apria, the “Borrowers”), and the other Grantors party thereto.
A.
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms
in the Intercreditor Agreement.
B.
[ ], a Subsidiary of the Parent Borrower (the “Additional
Grantor”), has granted a Lien on all or a portion of its assets to secure First Lien Obligations and such Additional Grantor is not a party to the Intercreditor Agreement.
C.
The Additional Grantor wishes to become a party to the Intercreditor Agreement and to acquire and undertake the
rights and obligations of a Grantor thereunder. The Additional Grantor is entering into this Grantor Joinder Agreement in accordance with the provisions of the Intercreditor Agreement in order to become a Grantor thereunder.
D.
Accordingly, the Additional Grantor agrees as follows, for the benefit of the Collateral Agents, the Borrowers
and each other party to the Intercreditor Agreement:
SECTION 1 Accession to the Intercreditor Agreement. In
accordance with Section 10.12 of the Intercreditor Agreement, the Additional Grantor (a) hereby accedes and becomes a party to the Intercreditor Agreement as a Grantor with the same force and effect as if originally named therein as a
Grantor, (b) agrees to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations of a Grantor under the Intercreditor Agreement.
SECTION 2 Representations, Warranties and Acknowledgement of the Additional Grantor. The Additional Grantor represents and warrants to
each Collateral Agent and each Secured Party that this Grantor Joinder Agreement has been duly authorized, executed and delivered by such Additional Grantor and constitutes the legal, valid and binding obligation, enforceable against it 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.
SECTION 3 Counterparts. This Grantor Joinder Agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall constitute a single contract. This Grantor Joinder Agreement shall become effective when each Collateral Agent shall have received a counterpart of this Grantor Joinder
Agreement that bears the signature of the Additional Grantor. Delivery of an executed signature page to this Grantor Joinder Agreement by facsimile transmission or other electronic communication (including “.pdf” or
“.tif” files) shall be as effective as delivery of a manually signed counterpart of this Grantor Joinder Agreement. The words “execution,” “signed,” “signature,” and words
of similar import in this Grantor Joinder Agreement or any notice, certificate,
document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same
effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National
Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 4 Benefit of Agreement. The agreements set forth herein or undertaken pursuant hereto are for the benefit of, and may be
enforced by, any party to the Intercreditor Agreement.
SECTION 5 Governing Law. THIS GRANTOR JOINDER AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6 Severability. In case any one or
more of the provisions contained in this Grantor Joinder Agreement should be held invalid, illegal or unenforceable in any respect, none of the parties hereto shall be required to comply with such provision for so long as such provision is held to
be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7 Notices. All communications and notices hereunder shall be in writing and given as provided in Section 10.01 of the
Intercreditor Agreement.
SECTION 8 Expense Reimbursement. The Additional Grantor agrees to reimburse each Collateral Agent for its
reasonable and invoiced out-of-pocket expenses in connection with this Grantor Joinder Agreement, including the reasonable and invoiced fees, other charges and
disbursements of counsel for each Collateral Agent.
IN WITNESS WHEREOF, the Additional Grantor has duly executed this Grantor Joinder Agreement
to the Intercreditor Agreement as of the day and year first above written.
[NAME OF SUBSIDIARY]
By:
Name:
Title:
Acknowledged by:
BANK OF AMERICA, N.A.,
as RCF
Collateral Agent
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as TLB
Collateral Agent
By:
Name:
Title:
REGIONS BANK,
as First Lien Notes
Collateral Agent
By:
Name:
Title:
[EACH OTHER ADDITIONAL
COLLATERAL AGENT], as Additional
Collateral Agent
By:
Name:
Title:
EXHIBIT F
to Amendment No. 4 to Credit Agreement and Consent
Second Lien Intercreditor Agreement
[See attached.]
Execution Version
JUNIOR LIEN INTERCREDITOR AGREEMENT
dated as of June 15, 2026
among
BANK OF AMERICA, N.A.,
as RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as TLB
Collateral Agent,
REGIONS BANK,
as First Lien Notes Collateral Agent,
REGIONS BANK,
as Initial Junior
Lien Collateral Agent,
and
each additional Representative from time to time party hereto,
and acknowledged and agreed by
ACCENDRA HEALTH, INC.,
as the
Parent Borrower,
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC
APRIA,
INC.,
and
BYRAM HEALTHCARE
CENTERS, INC.,
as Borrowers
and
the other Grantors from time
to time party hereto
JUNIOR LIEN INTERCREDITOR AGREEMENT dated as of June 15, 2026 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among BANK OF AMERICA, N.A., in its capacity, together with its successors in such capacity, as RCF Collateral Agent
(as defined below) under the RCF Credit Agreement (as defined below), JPMORGAN CHASE BANK, N.A., in its capacity, together with its successors in such capacity, as the TLB Collateral Agent (as defined below) under the TLB Credit Agreement (as
defined below), REGIONS BANK, in its capacity, together with its successors in such capacity, as the First Lien Notes Collateral Agent (as defined below) under the First Lien Notes Indenture (as defined below), REGIONS BANK, in its
capacity, together with its successors in such capacity, as the Initial Junior Lien Collateral Agent (as defined below) under the Initial Junior Lien Agreement (as defined below), and each additional Junior Priority Representative and Senior
Representative that from time to time becomes a party hereto pursuant to Section 8.09, and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I,
LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista II”), APRIA, INC., a Delaware corporation
(“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and Apria, the “Borrowers”), and the other
Grantors (as defined below) party hereto.
In consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the RCF Collateral Agent (for itself and on behalf of the RCF Secured Parties), the TLB Collateral Agent (for itself and on behalf of the TLB Secured Parties), the First
Lien Notes Collateral Agent (for itself and on behalf of the First Lien Notes Secured Parties), the Initial Junior Lien Collateral Agent (for itself and on behalf of the Initial Junior Lien Secured Parties), each additional Senior Representative
(for itself and on behalf of the Additional Senior Debt Parties under the applicable Additional Senior Debt Facility) and each additional Junior Priority Representative (for itself and on behalf of the Junior Priority Debt Parties under the
applicable Junior Priority Debt Facility) agree as follows:
ARTICLE I
Definitions
SECTION
1.01. Certain Defined Terms. Capitalized terms used but not otherwise defined herein, if defined in the New York UCC, have the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below.
“Additional Junior Priority Debt” means any Indebtedness that is issued or guaranteed by the Borrowers and/or any other
Grantor (other than Indebtedness constituting Initial Junior Lien Obligations), which Indebtedness and guarantees are secured by the Junior Priority Collateral (or any portion thereof) on a pari passu or junior basis (but without
regard to control of remedies, other than as provided by the terms of the applicable Additional Junior Priority Debt Documents) with the Initial Junior Lien Obligations and any other Junior Priority Debt Obligations and which the applicable
Additional Junior Priority Debt Documents provide that such Indebtedness and guarantees are to be secured by such Junior Priority Collateral on a subordinate basis to the Senior Obligations; provided, however, that (i) such
Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each then extant Senior Debt Document and Junior Priority Debt Document in effect at the time of such incurrence, security grant or guarantee and (ii) the
Representative for the holders of such Indebtedness shall have (A) executed and delivered this Agreement as of the date hereof or become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.09
hereof and (B) become a party to an Applicable Intercreditor Agreement (if relevant). Additional Junior Priority Debt shall include any Registered Equivalent Notes and guarantees thereof by the Guarantors issued in exchange therefor.
2
“Additional Junior Priority Debt Documents” means, with respect to any
series, issue or class of Additional Junior Priority Debt, the promissory notes, loan agreements, indentures, the Junior Priority Collateral Documents or other operative agreements evidencing or governing such Indebtedness.
“Additional Junior Priority Debt Facility” means each indenture, loan agreement or other governing agreement with respect
to any Additional Junior Priority Debt.
“Additional Junior Priority Debt Obligations” means, with respect to any
series, issue or class of Additional Junior Priority Debt, all amounts owing pursuant to the terms of such Additional Junior Priority Debt, including, without limitation, the obligation (including guarantee obligations) to pay principal, interest,
fees, expenses (including interest, fees, and expenses that accrue after the commencement of a Bankruptcy Case, regardless of whether such interest is an allowed claim under such Bankruptcy Case), letter of credit commissions, reimbursement
obligations, charges, attorneys’ costs, indemnities and other amounts payable by a Grantor under any Additional Junior Priority Debt Document.
“Additional Junior Priority Debt Parties” means, with respect to any series, issue or class of Additional Junior Priority
Debt, the holders of such Indebtedness, the Representative with respect thereto, any trustee or agent therefor under any related Additional Junior Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken by the
Borrowers or any other Grantor under any related Additional Junior Priority Debt Documents.
“Additional Senior Debt”
means any Indebtedness that is issued or guaranteed by the Borrowers and/or any Grantor (other than Indebtedness constituting RCF Obligations, TLB Obligations or First Lien Notes Obligations) which Indebtedness and guarantees are secured by the
Senior Collateral (or a portion thereof) on a basis that is senior to the Initial Junior Lien Obligations (but not senior to the RCF Obligations, TLB Obligations or First Lien Notes Obligations); provided, however, that (i) such
Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each then extant Senior Debt Document and Junior Priority Debt Document in effect at the time of such incurrence, security grant or guarantee and (ii) the
Representative for the holders of such Indebtedness shall have (A) executed and delivered this Agreement as of the date hereof or become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.09
hereof and (B) become a party to an Applicable Intercreditor Agreement (if relevant). Additional Senior Debt shall include any Registered Equivalent Notes and guarantees thereof by the Guarantors issued in exchange therefor.
“Additional Senior Debt Documents” means, with respect to any series, issue or class of Additional Senior Debt, the
promissory notes, loan agreements, indentures, the Senior Collateral Documents or other operative agreements evidencing or governing such Indebtedness.
“Additional Senior Debt Facility” means each indenture, loan agreement or other governing agreement with respect to any
Additional Senior Debt.
3
“Additional Senior Debt Obligations” means, with respect to any series,
issue or class of Additional Senior Debt, all amounts owing pursuant to the terms of such Additional Senior Debt, including, without limitation, the obligation (including guarantee obligations) to pay principal, interest, fees, expenses (including
interest, fees, and expenses that accrue after the commencement of a Bankruptcy Case, regardless of whether such interest, fees, or expenses is an allowed claim under such Bankruptcy Case), letter of credit commissions, reimbursement obligations,
charges, attorneys’ costs, indemnities and other amounts payable by a Grantor under any Additional Senior Debt Document.
“Additional Senior Debt Parties” means, with respect to any series, issue or class of Additional Senior Debt, the holders
of such Indebtedness, the Representative with respect thereto, any trustee or agent therefor under any related Additional Senior Debt Documents and the beneficiaries of each indemnification obligation undertaken by the Borrowers or any Grantor under
any related Additional Senior Debt Documents.
“Agreement” has the meaning assigned to such term in the introductory
paragraph of this Agreement.
“Applicable Intercreditor Agreement” means the First Lien Pari Passu Intercreditor
Agreement and/or any other intercreditor agreement entered into in accordance with the terms of the Senior Debt Documents and/or the Junior Priority Debt Documents, as applicable, as the context requires.
“Authorized Officer” means, with respect to any Person, the chief executive officer, the chief financial officer, principal
accounting officer, the president, any vice president, treasurer, general counsel, secretary or another executive officer of such Person.
“Bailee Agent” means the “Bailee Agent” as defined in the First Lien Pari Passu Intercreditor Agreement.
“Bankruptcy Case” means a case under the Bankruptcy Code or any other Bankruptcy Law.
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
“Borrowers” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed.
“Class Debt” has the meaning assigned to such term
in Section 8.09.
“Class Debt Parties” has the meaning assigned to such term in
Section 8.09.
“Class Debt Representatives” has the meaning assigned to such term in
Section 8.09.
“Collateral” means the Senior Collateral and the Junior Priority Collateral.
4
“Collateral Agents” means the RCF Collateral Agent, the TLB Collateral
Agent, the First Lien Notes Collateral Agent, any collateral agent designated pursuant to any Additional Senior Debt Documents, the Initial Junior Lien Collateral Agent and any collateral agent designated pursuant to any Additional Junior Priority
Debt Documents.
“Collateral Documents” means the Senior Collateral Documents and the Junior Priority Collateral
Documents.
“Debt Facility” means any Senior Facility and any Junior Priority Debt Facility.
“Designated Junior Priority Representative” means (i) the Initial Junior Lien Collateral Agent, until such time as the
Initial Junior Lien Agreement ceases to be the only Junior Priority Debt Facility under this Agreement and (ii) thereafter, the Junior Priority Representative designated from time to time by the Junior Priority Majority Representatives, in a
notice to the Designated Senior Representative and the Borrowers hereunder, as the “Designated Junior Priority Representative” for purposes hereof.
“Designated Senior Representative” means the Controlling Collateral Agent (as defined in the First Lien Pari Passu
Intercreditor Agreement, which, as of the date hereof, is the First Lien Notes Collateral Agent) as identified to the Parent Borrower and the Designated Junior Priority Representative, as applicable.
“DIP Financing” has the meaning assigned to such term in Section 6.01.
“Discharge” means, with respect to any Debt Facility, the date on which such Debt Facility and the Senior Obligations or
Junior Priority Debt Obligations thereunder, as the case may be, are paid in full in cash or other consideration acceptable to the holders thereof (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has
been made), all commitments if any to extend credit are terminated (including letters of credit, the undrawn amount of which constitutes Senior Obligations, which shall be terminated), and no longer secured by Shared Collateral pursuant to the terms
of the documentation governing such Debt Facility. The term “Discharged” shall have a corresponding meaning.
“Discharge of Senior Obligations” means the date on which the Discharge of Senior Obligations has occurred.
“First Lien Pari Passu Intercreditor Agreement” means that certain Amended and Restated First Lien Pari Passu Intercreditor
Agreement, dated as of the date hereof, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, among the Collateral Agents, the Borrowers and the other Grantors party thereto.
“First Lien Notes Collateral Agent” means the “Notes Collateral Agent” as defined in the First Lien Notes
Indenture which, as of the date hereof, is Regions Bank.
“First Lien Notes Documents” means the “Note
Documents” as defined in the First Lien Notes Indenture.
5
“First Lien Notes Indenture” means that certain Indenture relating to
those certain 9.000% Senior Secured First Lien Notes due 2032, dated as of the date hereof, among the Parent Borrower, the guarantors party thereto, and Regions Bank, as trustee and notes collateral agent, and one or more other financing
arrangements (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time,
together with any Refinancing thereof; provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Joinder Agreement
and (b) that in the case of any Refinancing, the Parent Borrower designates the applicable agreements as the “First Lien Notes Indenture” (and not an Additional Senior Debt Document) hereunder.
“First Lien Notes Obligations” means the “Notes Obligations” as such term is defined in the First Lien Notes
Indenture, together with any Refinancing thereof.
“First Lien Notes Secured Parties” means the “Notes Secured
Parties” as defined in the First Lien Notes Indenture.
“First Lien Notes Security Documents” means the
“Notes Security Documents” as defined in the First Lien Notes Indenture.
“Grantors” means the Borrowers,
the other Guarantors, and each of their respective Subsidiaries or direct or indirect parent company of the Parent Borrower which has granted a security interest pursuant to any Collateral Document to secure any Secured Obligations. The Grantors
existing on the date hereof are listed on the signature pages hereto as Grantors.
“Governmental Authority” means any
nation or government, any state, provincial, country, territorial or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantors” means each Person that guarantees any Senior Obligations pursuant to any Senior Debt Documents.
“Indebtedness” has the meaning assigned to such term in the RCF Credit Agreement, TLB Credit Agreement, First Lien Notes
Indenture or the Initial Junior Lien Agreement, as applicable.
“Initial Junior Lien Agreement” means that certain
Indenture relating to those certain 9.750% Senior Secured Second Lien Notes due 2033, dated as of the date hereof, among the Parent Borrower, the guarantors party thereto, and Regions Bank, as trustee and notes collateral agent, and one or more
other financing arrangements (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from
time to time, together with any Refinancing thereof; provided (a) that the obligations in respect of any Refinancing are secured by Liens on the Shared Collateral that rank junior to the Liens securing the Senior Obligations,
(b) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Joinder Agreement and (c) that in the case of any Refinancing, the
Parent Borrower designates the applicable agreements as the “Initial Junior Lien Agreement” (and not an Additional Junior Priority Debt Document) hereunder.
“Initial Junior Lien Collateral Agent” means the “Notes Collateral Agent” as defined in the Initial Junior Lien
Agreement which, as of the date hereof, is Regions Bank.
6
“Initial Junior Lien Debt Documents” means the “Note
Documents” as defined in the Initial Junior Lien Agreement.
“Initial Junior Lien Obligations” means the
“Notes Obligations” as such term is defined in the Initial Junior Lien Agreement, together with any Refinancing thereof.
“Initial Junior Lien Secured Parties” means the “Notes Secured Parties” as defined in the Initial Junior Lien
Agreement.
“Initial Junior Lien Security Documents” means the “Notes Security Documents” as defined in the
Initial Junior Lien Agreement.
“Insolvency or Liquidation Proceeding” means:
(1) any case or proceeding commenced by or against any Borrower or any other Grantor under any Bankruptcy Law, any other
proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of any Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrowers or any other
Grantor or any similar case or proceeding relative to the Borrowers or any other Grantor or its creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to any Borrower or
any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any
other proceeding of any type or nature in which substantially all claims of creditors of any Borrower or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
“Joinder Agreement” means a supplement to this Agreement in substantially the form of Annex II or Annex III hereof.
“Junior Permitted Actions” has the meaning assigned to such term in Section 3.01(a).
“Junior Priority Class Debt” has the meaning assigned to such term in Section 8.09.
“Junior Priority Class Debt Parties” has the meaning assigned to such term in Section 8.09.
“Junior Priority Class Debt Representative” has the meaning assigned to such term in Section 8.09.
“Junior Priority Collateral” means any “Collateral” as defined in any Initial Junior Lien Debt Document or
any other Junior Priority Debt Document or any other assets or property of the Borrowers or any other Grantor with respect to which a Lien is granted or purported to be granted pursuant to a Junior Priority Collateral Document as security for any
Junior Priority Debt Obligation.
7
“Junior Priority Collateral Documents” means the Initial Junior Lien
Security Documents and each of the collateral agreements, security agreements, any Applicable Intercreditor Agreement and other instruments and documents executed and delivered by the Borrowers or any other Grantor for purposes of providing
collateral security for any Junior Priority Debt Obligation.
“Junior Priority Debt” means any Initial Junior Lien
Obligations and any Additional Junior Priority Debt.
“Junior Priority Debt Documents” means the Initial Junior Lien
Debt Documents and any Additional Junior Priority Debt Documents.
“Junior Priority Debt Facilities” means the Initial
Junior Lien Agreement and any Additional Junior Priority Debt Facilities.
“Junior Priority Debt Obligations” means the
Initial Junior Lien Obligations and any Additional Junior Priority Debt Obligations.
“Junior Priority Debt Parties”
means the Initial Junior Lien Secured Parties and any Additional Junior Priority Debt Parties.
“Junior Priority Enforcement
Date” means, with respect to any Junior Priority Representative, the date which is 180 days after the occurrence of both (i) an Event of Default (under and as defined in the Junior Priority Debt Document for which such Junior Priority
Representative has been named as Representative) and (ii) the Designated Senior Representative’s and each other Representative’s receipt of written notice from such Junior Priority Representative that (x) such Junior Priority
Representative is the Designated Junior Priority Representative and that an Event of Default (under and as defined in the Junior Priority Debt Document for which such Junior Priority Representative has been named as Representative) has occurred and
is continuing and (y) the Junior Priority Debt Obligations of the series with respect to which such Junior Priority Representative is the Junior Priority Representative are currently due and payable in full (whether as a result of acceleration
thereof or otherwise) in accordance with the terms of the applicable Junior Priority Debt Document; provided that the Junior Priority Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect
to any Shared Collateral (1) at any time any Senior Representative has commenced and is diligently pursuing any enforcement action with respect to all or a material portion of Shared Collateral or (2) at any time the Grantor which has
granted a security interest in Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Junior Priority Lien” means the Liens on the Junior Priority Collateral in favor of Junior Priority Debt Parties under
Junior Priority Collateral Documents.
“Junior Priority Majority Representatives” means Junior Priority Representatives
representing at least a majority of the then aggregate principal amount of outstanding Junior Priority Debt Obligations for borrowed money.
“Junior Priority Representative” means (i) in the case of the Initial Junior Lien Obligations or the Initial Junior
Lien Secured Parties, the Initial Junior Lien Collateral Agent and (ii) in the case of any Junior Priority Debt Facility incurred after the date hereof, the Junior Priority Debt Parties thereunder, the trustee, administrative agent, collateral
agent, security agent or similar agent under such Junior Priority Debt Facility that is named as the Representative in respect of such Junior Priority Debt Facility in the applicable Joinder Agreement.
8
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, assignment (by way of security or otherwise), deemed trust, 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 Capitalized Lease having substantially the same economic effect as any of the foregoing).
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
“Officer’s Certificate” has the meaning provided to such term in Section 8.08.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
“Possessory Collateral” means any Shared Collateral in the
possession or control of a Collateral Agent (or its agents or bailees), to the extent that possession or control thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without
limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession or control of any Collateral Agent under the terms of the Senior Collateral Documents or the Junior Priority
Collateral Documents.
“Proceeds” means the proceeds of any sale, collection or other liquidation of Shared Collateral
and any payment or distribution made in respect of Shared Collateral in a Bankruptcy Case and any amounts received by any Senior Representative or any Senior Secured Party from a Junior Priority Debt Party in respect of Shared Collateral pursuant to
this Agreement.
“Purchase Event” has the meaning assigned to such term in Section 5.07.
“RCF Credit Agreement” means that certain Credit Agreement, dated as of March 10, 2021 (as amended pursuant to that
certain Amendment No. 1 to Credit Agreement, dated as of February 22, 2022, that certain Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to Security Agreement and Amendment No. 1 to
Guaranty, dated as of March 29, 2022, that certain Amendment No. 3 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement and Consent dated as of the date hereof), by and among the
Borrowers, the lenders party thereto from time to time, Bank of America, N.A., as administrative agent and collateral agent, and one or more other financing arrangements (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any Refinancing thereof; provided (a) that in the case of
any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Joinder Agreement and (b) that in the case of any Refinancing, the Parent Borrower designates the
applicable agreements as the “RCF Credit Agreement” (and not an Additional Senior Debt Document) hereunder.
“RCF
Collateral Agent” means the “Collateral Agent” as defined in the RCF Credit Agreement which, as of the date hereof, is Bank of America, N.A..
“RCF Documents” means the “Loan Documents” as defined in the RCF Credit Agreement.
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“RCF Obligations” means the “Obligations” as defined in the
RCF Credit Agreement, together with any Refinancing thereof.
“RCF Secured Parties” means the “Secured
Parties” as defined in the RCF Credit Agreement.
“RCF Security Agreement” means the “Security
Agreement” as defined in the RCF Credit Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
“Recovery” has the meaning assigned to such term in Section 6.04.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, exchange, renew, refund, repay, prepay, redeem,
purchase, defease, retire, restructure, amend, increase, modify, supplement or replace, or to issue other Indebtedness or enter alternative financing arrangements in exchange or replacement for, such Indebtedness, in whole or in part, including by
adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including, in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any
credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” shall have correlative meanings.
“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A 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.
“Replacement Senior Obligations” has the meaning assigned to such term in
Section 8.10.
“Representative(s)” means, individually and/or collectively, each of the Senior Representatives and
the Junior Priority Representatives.
“SEC” means the United States Securities and Exchange Commission and any
successor agency thereto.
“Secured Obligations” means the Senior Obligations and the Junior Priority Debt Obligations.
“Secured Parties” means the Senior Secured Parties and the Junior Priority Debt Parties.
“Senior Class Debt” has the meaning assigned to such term in Section 8.09.
“Senior Class Debt Parties” has the meaning assigned to such term in Section 8.09.
“Senior Class Debt Representative” has the meaning assigned to such term in Section 8.09.
“Senior Collateral” means any “Collateral” as defined in the RCF Credit Agreement, the TLB Credit Agreement,
the First Lien Notes Indenture or any other Senior Debt Document or any other assets or property of the Borrowers or any other Grantor with respect to which a Lien is granted or purported to be granted pursuant to a Senior Collateral Document as
security for any Senior Obligations.
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“Senior Collateral Documents” means (a) the RCF Security Agreement
and the other Collateral Documents (as defined in the RCF Credit Agreement), (b) the TLB Security Agreement and the other Collateral Documents (as defined in the TLB Credit Agreement), (c) the First Lien Notes Security Documents and (d) any
other “Collateral Documents” as defined in any Applicable Intercreditor Agreement (upon and after the initial execution and delivery thereof by the initial parties thereto) and each of the collateral agreements, security agreements and
other instruments and documents executed and delivered by the Borrowers or any other Grantor for purposes of providing collateral security for any Senior Obligation.
“Senior Debt Documents” means, collectively, (a) the RCF Documents, (b) the TLB Documents, (c) First Lien
Notes Documents and (d) the Additional Senior Debt Documents.
“Senior Facilities” means (a) the RCF Credit
Agreement, (b) the TLB Credit Agreement, (c) the First Lien Notes Indenture and (d) any Additional Senior Debt Facilities.
“Senior Lien” means the Liens on the Senior Collateral in favor of the Senior Secured Parties under the Senior Collateral
Documents.
“Senior Obligations” means (a) all the RCF Obligations, (b) all the TLB Obligations, (c) all
the First Lien Notes Obligations and (d) any Additional Senior Debt Obligations.
“Senior Representative” means
(a) in the case of any RCF Obligations and the RCF Secured Parties, the RCF Collateral Agent, (b) in the case of any TLB Obligations and the TLB Secured Parties, the TLB Collateral Agent, (c) in the case of any First Lien Notes
Obligations and the First Lien Notes Secured Parties, the First Lien Notes Collateral Agent and (d) in the case of any Additional Senior Debt Facility and the Additional Senior Debt Parties thereunder, the trustee, administrative agent,
collateral agent, security agent or similar agent under such Additional Senior Debt Facility that is named as the Representative in respect of such Additional Senior Debt Facility hereunder or in the applicable Joinder Agreement.
“Senior Secured Parties” means (a) the RCF Secured Parties, (b) the TLB Secured Parties, (c) the First Lien
Notes Secured Parties and (d) any Additional Senior Debt Parties.
“Shared Collateral” means, at any time,
Collateral in which the holders of Senior Obligations under at least one Senior Facility (or their Representatives) and the holders of Junior Priority Debt Obligations under at least one Junior Priority Debt Facility (or their Representatives) hold
a security interest at such time (or, in the case of the Senior Facilities, are deemed pursuant to Article II to hold a security interest). If, at any time, any portion of the Senior Collateral under one or more Senior Facilities does not constitute
Junior Priority Collateral under one or more Junior Priority Debt Facilities, then such portion of such Senior Collateral shall constitute Shared Collateral only with respect to the Junior Priority Debt Facilities for which it constitutes Junior
Priority Collateral and shall not constitute Shared Collateral for any Junior Priority Debt Facility which does not have a security interest in such Collateral at such time.
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“Subsidiary” of a Person means a corporation, company, 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) or the management of which is
otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Parent Borrower.
“TLB Collateral Agent” means the “Collateral Agent” as defined in
the TLB Credit Agreement which, as of the date hereof, is JPMorgan Chase Bank, N.A.,.
“TLB Credit Agreement” means
that certain Term Loan Credit Agreement, dated as of March 29, 2022 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 2 to Term Loan Credit
Agreement and Consent dated as of the date hereof), by and among the Borrowers, the lenders party thereto from time to time, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as amended, restated, amended and restated,
extended, supplemented or otherwise modified from time to time, together with any Refinancing thereof; provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a
party hereto by executing and delivering a Joinder Agreement and (b) that in the case of any Refinancing, the Parent Borrower designates the applicable agreements as the “TLB Credit Agreement” (and not an Additional Senior Debt
Document) hereunder.
“TLB Documents” means the “Loan Documents” as defined in the TLB Credit Agreement.
“TLB Obligations” means the “Obligations” as such term is defined in the TLB Credit Agreement, together
with any Refinancing thereof.
“TLB Secured Parties” means the TLB Collateral Agent and the holders of the TLB
Obligations issued pursuant to the TLB Credit Agreement.
“TLB Security Agreement” means the “Security
Agreement” as defined in the TLB Credit Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
“Uniform Commercial Code” or “UCC” means, unless otherwise specified, the Uniform Commercial Code as
from time to time in effect in the State of New York.
SECTION 1.02. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time
amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express
reference is made to such subsidiaries, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (iv) all references herein to
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Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term
“or” is not exclusive.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01. Subordination.
(a) Notwithstanding the date, time, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection
of any Liens granted to any Junior Priority Representative or any Junior Priority Debt Parties on the Shared Collateral or of any Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any actual or
alleged defect in any of the foregoing) and notwithstanding any provision of the UCC, any applicable law, any Junior Priority Debt Document or any Senior Debt Document or any other circumstance whatsoever, each Junior Priority Representative, on
behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby agrees that (a) any Lien on the Shared Collateral securing or purporting to secure any Senior Obligations now or hereafter held by or on behalf
of any Senior Representative or any other Senior Secured Party or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all
respects and prior to any Lien on the Shared Collateral securing or purporting to secure any Junior Priority Debt Obligations and (b) any Lien on the Shared Collateral securing or purporting to secure any Junior Priority Debt Obligations now or
hereafter held by or on behalf of any Junior Priority Representative, any Junior Priority Debt Parties or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be
junior and subordinate in all respects to all Liens on the Shared Collateral securing or purporting to secure any Senior Obligations. All Liens on the Shared Collateral securing or purporting to secure any Senior Obligations shall be and remain
senior in all respects and prior to all Liens on the Shared Collateral securing or purporting to secure any Junior Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Obligations are subordinated to any Lien
securing any other obligation of the Borrowers, any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
SECTION 2.02. Nature of Senior Lender Claims. Each Junior Priority Representative, on behalf of itself and each Junior Priority Debt
Party under its Junior Priority Debt Facility, acknowledges that (a) a portion of the Senior Obligations may be revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced
and subsequently reborrowed, (b) the terms of the Senior Debt Documents and the Senior Obligations may be amended, amended and restated, supplemented or otherwise modified, and the Senior Obligations, or a portion thereof, may be Refinanced
from time to time and (c) the aggregate amount of the Senior Obligations may be increased from time to time, in each case, without notice to or consent by the Junior Priority Representatives or the Junior Priority Debt Parties and without
affecting the provisions hereof. The Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, amendment and restatement, supplement or other modification, or any Refinancing, of either the Senior
Obligations or the Junior Priority Debt Obligations, or any portion thereof. As between the Borrowers and the other Grantors and the Junior Priority Debt Parties, the foregoing provisions will not limit or otherwise affect the obligations of the
Borrowers and the Grantors contained in any Junior Priority Debt Document with respect to the incurrence of additional Senior Obligations.
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SECTION 2.03. Prohibition on Contesting Liens. Each of the Junior Priority
Representatives, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of any Lien securing, or the allowability of any claim asserted with respect to, any Senior Obligations held (or purported to be held)
by or on behalf of any Senior Representative or any of the other Senior Secured Parties or other agent or trustee therefor in any Senior Collateral, and each Senior Representative, for itself and on behalf of each Senior Secured Party under its
Senior Facility, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or
enforceability of any Lien securing, or the allowability of any claim asserted with respect to, any Junior Priority Debt Obligations held (or purported to be held) by or on behalf of any of any Junior Priority Representative or any of the Junior
Priority Debt Parties in the Junior Priority Collateral. Notwithstanding the foregoing, no provision in this Agreement shall be construed to prevent or impair the rights of any Senior Representative to enforce this Agreement (including the priority
of the Liens securing the Senior Obligations as provided in Section 2.01) or any of the Senior Debt Documents.
SECTION 2.04. No
Other Liens. The parties hereto agree that, so long as the Discharge of Senior Obligations has not occurred (a) (i), none of the Grantors shall, or shall permit any of its subsidiaries to, grant or permit any Lien on any asset or property of
such Grantor to secure any Junior Priority Debt Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset or property of such Grantor to secure the Senior Obligations and (ii) none of the Grantors shall grant any
Liens on any asset or property of any Grantor to secure any Senior Obligations unless it has granted, or concurrently therewith grants, a Lien on such asset or property of such Grantor to secure the Junior Priority Debt Obligations; provided that
this provision will not be violated with respect to any Senior Obligations or Junior Priority Debt Obligations, as applicable, if the applicable Representatives are given a reasonable opportunity to accept a Lien on any asset or property and either
the Parent Borrower or the applicable Representatives state in writing that the applicable Senior Debt Documents or Junior Priority Debt Documents in respect thereof prohibit the applicable Representatives from accepting a Lien on such asset or
property or the applicable Representatives otherwise expressly decline to accept a Lien on such asset or property (any such prohibited or declined Lien, a “Declined Lien”) and (b)(i) if any Junior Priority Representative or any
Junior Priority Debt Party shall hold any Lien on any assets or property of any Grantor securing any Junior Priority Debt Obligations that are not also subject to the Liens securing all Senior Obligations under the Senior Collateral Documents, other
than with respect to a Declined Lien, such Junior Priority Representative or Junior Priority Debt Party (1) shall notify the Designated Senior Representative promptly upon becoming aware thereof and, unless such Grantor shall promptly also
grant a similar Lien on such assets or property to each Senior Representative as security for the Senior Obligations, shall assign such Lien to the Designated Senior Representative as security for all Senior Obligations for the benefit of the Senior
Secured Parties (but may retain a junior Lien on such assets or property subject to the terms hereof) and (2) until such assignment or such grant of a similar Lien to each Senior Representative, shall be deemed to hold and have held such Lien
for the benefit of each Senior Representative and the other Senior Secured Parties as security for the Senior Obligations and (ii) if any Senior Representative or any Senior Secured Party shall hold any Lien on any assets or property of any
Grantor securing any Senior Obligations that are not also subject to the second-priority Liens securing all Junior Priority
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Debt Obligations under the Junior Priority Collateral Documents, other than with respect to a Declined Lien, such Senior Representative or Senior Secured Party shall notify the Designated Junior
Priority Representative promptly upon becoming aware thereof. To the extent that the provisions of clause (a)(i) or (b)(i) of the immediately preceding sentences are not complied with for any reason, without limiting any other right or remedy
available to any Senior Representative or any other Senior Secured Party, each Junior Priority Representative agrees, for itself and on behalf of the other Junior Priority Debt Parties, that any amounts received by or distributed to any Junior
Priority Debt Party pursuant to or as a result of any Lien granted in contravention of this Section 2.04 shall be subject to Sections 4.01 and 4.02 of this Agreement.
SECTION 2.05. Perfection of Liens. Except for the limited agreements of the Senior Representatives pursuant to Section 5.05
hereof, none of the Senior Representatives or the Senior Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Junior Priority Representatives or the
Junior Priority Debt Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Senior Secured Parties and the Junior Priority Debt Parties and shall not impose on the Senior
Representatives, the Senior Secured Parties, the Junior Priority Representatives, the Junior Priority Debt Parties or any agent or trustee therefor any obligations in respect of the disposition of Proceeds of any Shared Collateral which would
conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or Governmental Authority or any applicable law.
ARTICLE III
Enforcement
SECTION 3.01. Exercise of Remedies.
(a) So long as the Discharge of Senior Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced
by or against any Borrower or any other Grantor, (i) neither any Junior Priority Representative nor any Junior Priority Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared
Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or
action brought with respect to the Shared Collateral or any other Senior Collateral by any Senior Representative or any Senior Secured Party in respect of the Senior Obligations, the exercise of any right by any Senior Representative or any Senior
Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement to which any Senior Representative or any Senior Secured Party either is a party or may have rights as a third-party beneficiary, or any other exercise by any such party of any rights and remedies relating to the Shared Collateral under
the Senior Debt Documents or otherwise in respect of the Senior Collateral or the Senior Obligations, or (z) object to the forbearance by the Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the Shared Collateral in respect of Senior Obligations and (ii) the Senior Representatives and the Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies
(including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Shared Collateral without any consultation with or the consent of any Junior Priority
Representative or any Junior Priority Debt Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Borrowers or any other Grantor, any Junior
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Priority Representative may (x) file a claim, proof of claim, or statement of interest with respect to the Junior Priority Debt Obligations under its Junior Priority Debt Facility,
(y) credit bid their debt in accordance with Section 6.10(c) of this Agreement and (z) make any arguments and motions that do not violate or contravene the terms of this Agreement, (B) any Junior Priority Representative may take
any action (not adverse to the prior Liens on the Shared Collateral securing the Senior Obligations or the rights of the Senior Representatives or the Senior Secured Parties to exercise remedies in respect thereof) in order to create, prove,
perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies
as unsecured creditors, to the extent provided in Section 5.04 of this Agreement, (D) the Junior Priority Debt Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this
Agreement, (E) any Junior Priority Debt Party may (subject to the provisions of Section 6.10(b) of this Agreement) vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement
proposed in or in connection with any Insolvency or Liquidation Proceeding and (F) from and after the Junior Priority Enforcement Date, the Designated Junior Priority Representative may exercise or seek to exercise any rights or remedies
(including setoff) with respect to any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (clauses
(A) through (F) above referred to as “Junior Permitted Actions”). In exercising rights and remedies with respect to the Senior Collateral, the Senior Representatives and the Senior Secured Parties may enforce the provisions
of the Senior Debt Documents and exercise remedies in accordance with the terms thereof, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of
an agent appointed by them to sell or otherwise dispose of Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial
Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b) So long as the
Discharge of Senior Obligations has not occurred, except pursuant to Junior Permitted Actions, each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it will
not, in the context of its role as secured creditor, take or receive any Shared Collateral or any Proceeds of Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Shared Collateral and that
any collateral or such proceeds taken by it shall be paid over to the Designated Senior Representative in accordance with Section 4.02 of this Agreement, in respect of Junior Priority Debt Obligations. Without limiting the generality of the
foregoing, unless and until the Discharge of Senior Obligations has occurred, except pursuant to Junior Permitted Actions, the sole right of the Junior Priority Representatives and the Junior Priority Debt Parties with respect to the Shared
Collateral is to hold a Lien on the Shared Collateral in respect of Junior Priority Debt Obligations pursuant to the Junior Priority Debt Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if
any, after the Discharge of Senior Obligations has occurred.
(c) Without in any way limiting Junior Permitted Actions, (i) each
Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that neither such Junior Priority Representative nor any such Junior Priority Debt Party will take any action
that would hinder or otherwise interfere with any exercise of remedies undertaken by any Senior Representative or any Senior Secured Party with respect to
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the Shared Collateral under the Senior Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise, and
(ii) each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any such Junior Priority Debt Party may have as a junior lien
creditor or otherwise to object to the manner in which the Senior Representatives or the Senior Secured Parties seek to enforce or collect the Senior Obligations or the Liens granted on any of the Senior Collateral, regardless of whether any action
or failure to act by or on behalf of any Senior Representative or any other Senior Secured Party is adverse to the interests of the Junior Priority Debt Parties.
(d) Each Junior Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Junior
Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Senior Representatives or the Senior Secured Parties with respect to the Senior Collateral as set forth in this Agreement and the Senior Debt Documents.
(e) Without in any way limiting Junior Permitted Actions, the Designated Senior Representative or any Person authorized by it shall have
the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with
respect thereto, in each case in accordance with the terms of the Senior Debt Documents. Following the Discharge of Senior Obligations, the Designated Junior Priority Representative or any Person authorized by it who may be instructed by the Junior
Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Junior Priority Representative or any Person authorized by it who may be instructed by the Junior
Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to
the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided,
however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Collateral
after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Priority Debt Parties or the Junior Priority Debt Obligations.
SECTION 3.02. Cooperation. Without in any way limiting Junior Permitted Actions, each Junior Priority Representative, on behalf of
itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, unless and until the Discharge of Senior Obligations has occurred, it will not commence, or join with any Person (other than the Senior Secured Parties
and the Senior Representatives upon the request of the Designated Senior Representative) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Shared Collateral
under any of the Junior Priority Debt Documents or otherwise in respect of the Junior Priority Debt Obligations.
SECTION 3.03. Actions
upon Breach. Should any Junior Priority Representative or any Junior Priority Debt Party, contrary to this Agreement, in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to
realize upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, any Senior Representative or other Senior Secured Party (in its or their own name or in the name of the Borrowers or any other
Grantor) or the Borrowers may obtain relief against
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such Junior Priority Representative or such Junior Priority Debt Party by injunction, specific performance or other appropriate equitable relief. Each Junior Priority Representative, on behalf of
itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby (i) agrees that the Senior Secured Parties’ damages from the actions of the Junior Priority Representatives or any Junior Priority Debt Party may
at that time be difficult to ascertain and may be irreparable and waives any defense that the Borrowers, any other Grantor or the Senior Secured Parties cannot demonstrate damage or be made whole by the awarding of damages and (ii) irrevocably
waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by any Senior Representative or any other Senior Secured Party.
SECTION 3.04. No Additional Rights for the Grantors Hereunder. If any Senior Secured Party or Junior Priority Debt Party shall enforce
its rights or remedies in violation of the terms of this Agreement, no Grantor shall be entitled to use such violation as a defense to any action by any Senior Secured Party or Junior Priority Debt Party, nor to assert such violation as a
counterclaim or basis for setoff or recoupment against any Senior Secured Party or Junior Priority Debt Party.
ARTICLE IV
Payments
SECTION 4.01.
Application of Proceeds. After an “Event of Default” under any Senior Debt Document has occurred and is continuing and until such “Event of Default” under such Senior Debt Document is cured or waived, so long as the
Discharge of Senior Obligations has not occurred, the Shared Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Shared Collateral upon the exercise of remedies shall be applied to the
Senior Obligations in such order as specified in the relevant Senior Debt Documents (including an Applicable Intercreditor Agreement) to permanently reduce the Senior Obligations until the Discharge of Senior Obligations has occurred. Upon the
Discharge of Senior Obligations, each applicable Senior Representative shall deliver promptly to the Designated Junior Priority Representative any Shared Collateral or Proceeds thereof held by it in the same form as received, with any necessary
endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Designated Junior Priority Representative to the Junior Priority Debt Obligations in such order as specified in the relevant Junior Priority Debt
Documents (including an Applicable Intercreditor Agreement) until the Discharge of the Junior Priority Debt Obligations has occurred.
SECTION 4.02. Payments Over. Unless and until the Discharge of Senior Obligations has occurred, any Shared Collateral or Proceeds
thereof received by any Junior Priority Representative or any Junior Priority Debt Party in connection with the exercise of any right or remedy (including setoff) relating to the Shared Collateral or any distribution made in respect of any Shared
Collateral in any Insolvency or Liquidation Proceeding, in contravention of this Agreement or otherwise, shall be segregated and held in trust for the benefit of and forthwith paid over to the Designated Senior Representative for the benefit of the
Senior Secured Parties in the same form as received and applied pursuant to Section 4.01 of this Agreement, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The Designated Senior Representative is
hereby authorized to make any such endorsements as agent for each of the Junior Priority Representatives or any such Junior Priority Debt Party. This authorization is coupled with an interest and is irrevocable.
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ARTICLE V
Other Agreements
SECTION
5.01. Releases.
(a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its
Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of the Borrowers or any subsidiary of the Parent
Borrower), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further
action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than
any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties
shall not be so released if (i) such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document or (ii) such release of Senior Secured Parties’ Liens is granted upon or following the
Discharge of Senior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become
effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by any Borrower or
any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, without recourse, representation or warranty of any kind, at such Borrower’s or the other Grantor’s sole cost and expense, such
instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under
its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility,
hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s
own name, from time to time in the Designated Senior Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a) of this Agreement, to take any and all appropriate action and to execute any and all documents
and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a) of this Agreement, including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each
Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior
Obligations pursuant to the Senior Debt Documents, provided that noting in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive Proceeds in
connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
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(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in
the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of
Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to,
(iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item
of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of
a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with
respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative and any
Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it relates to
such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
SECTION 5.02. Insurance and Condemnation Awards. Unless and until the Discharge of Senior Obligations has occurred, the Designated
Senior Representative and the Senior Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Senior Debt Documents, (a) to be named as additional insured and loss payee under any insurance
policies maintained from time to time by any Grantor, (b) to adjust settlement for any insurance policy covering the Shared Collateral in the event of any loss thereunder and (c) to approve any award granted in any condemnation or similar
proceeding affecting the Shared Collateral. Unless and until the Discharge of Senior Obligations has occurred, all proceeds of any such policy and any such award, if in respect of the Shared Collateral, shall be paid (i) first, prior to the
occurrence of the Discharge of Senior Obligations, to the Designated Senior Representative for the benefit of Senior Secured Parties pursuant to the terms of the Senior Debt Documents, (ii) second, after the occurrence of the Discharge of
Senior Obligations, to the Designated Junior Priority Representative for the benefit of the Junior Priority Debt Parties pursuant to the terms of the applicable Junior Priority Debt Documents and (iii) third, if no Junior Priority Debt
Obligations or Senior Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If any Junior Priority Representative or any Junior
Priority Debt Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the Designated Senior Representative in accordance with the terms of
Section 4.02.
SECTION 5.03. Amendments to Debt Documents.
(a) The Senior Debt Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms, and the Indebtedness
under the Senior Debt Documents may be Refinanced, in each case, without the consent of any Junior Priority Debt Party; provided, however, that, without the consent of the Junior Priority Majority Representatives, no such
amendment, restatement, supplement, modification or Refinancing (or successive amendments, restatements, supplements, modifications or Refinancings) shall:
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(i) add any additional restrictions on the payment of the Junior Priority Debt Obligations;
or
(ii) contravene the provisions of this Agreement.
(b) Without the prior written consent of the Senior Representatives, no Junior Priority Debt Document may be amended, restated, supplemented or
otherwise modified, or entered into, and no Indebtedness under the Junior Priority Debt Documents may be Refinanced, to the extent such amendment, restatement, supplement or modification or Refinancing, or the terms of such new Junior Priority Debt
Document, would (i) contravene the provisions of this Agreement or any then extant Junior Priority Debt Document or Senior Debt Document, (ii) change to earlier dates any scheduled dates for payment of principal (including the final
maturity date) or of interest on Indebtedness under such Junior Priority Debt Document or (iii) reduce the capacity to incur Indebtedness for borrowed money constituting Senior Obligations to an amount less than the aggregate principal amount
of term loans or outstanding notes and aggregate principal amount of revolving commitments, in each case, under the Senior Debt Documents on the day of any such amendment, restatement, supplement, modification or Refinancing.
(c) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility,
agrees that each Junior Priority Collateral Document under its Junior Priority Debt Facility shall include the following language (or language to similar effect reasonably approved by the Designated Senior Representative):
“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the Junior Priority Representative
pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the Senior Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests
granted to (a) Bank of America, N.A., as collateral agent, pursuant to or in connection with that certain Credit Agreement, dated as of March 10, 2021 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as
of February 22, 2022, that certain Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to Security Agreement and Amendment No. 1 to Guaranty, dated as of March 29, 2022, that certain Amendment
No. 3 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement and Consent dated as of June 15, 2026), among the Parent Borrower, the Borrowers, the other guarantors from time to time
party thereto, the lenders from time to time party thereto, Bank of America, N.A., as administrative agent and collateral agent, as further amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time,
(b) JPMorgan Chase Bank, N.A., as collateral agent, pursuant to or in connection with that certain Term Loan Credit Agreement, dated as of March 29, 2022 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated
as of November 8, 2024 and that certain Amendment No. 2 to Term Loan Credit Agreement and Consent dated as of June 15, 2026), among the Parent Borrower, the Borrowers, the other guarantors from time to time party
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thereto, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as further amended, restated, amended and restated, extended,
supplemented or otherwise modified from time to time and (c) Regions Bank, as notes collateral agent pursuant to or in connection with the Indenture, dated as of June 15, 2026, among the Parent Borrower, the Borrowers, the other guarantors
from time to time party thereto, and Regions Bank, as trustee and notes collateral agent, as further amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time and (ii) the exercise of any right or
remedy by the Junior Priority Representative hereunder is subject to the limitations and provisions of the Intercreditor Agreement dated as of June 15, 2026 (as amended, restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), among Bank of America, N.A., as RCF Collateral Agent, JPMorgan Chase Bank, N.A., as TLB Collateral Agent, Regions Bank, as First Lien Notes Collateral Agent, Regions Bank, as Initial Junior Lien
Collateral Agent, the additional Representatives from time to time party thereto, the Parent Borrower, the Borrowers and their subsidiaries party thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of
this Agreement, the terms of the Intercreditor Agreement shall govern. The parties hereto acknowledge, authorize and consent to the entry by each of the Senior Representatives and the Junior Priority Representative into the Intercreditor
Agreement.”
(d) In the event that the Designated Senior Representative and/or the Senior Secured Parties enter into any amendment,
waiver or consent in respect of any of the Senior Collateral Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any Senior Collateral Document or changing in any manner the
rights of the Senior Representatives, the Senior Secured Parties, the Borrowers or any other Grantor thereunder (including the release of any Liens in Senior Collateral) in a manner that is applicable to all Senior Facilities, then such amendment,
waiver or consent shall apply automatically to any comparable provision of each comparable Junior Priority Collateral Document without the consent of any Junior Priority Representative or any Junior Priority Debt Party and without any action by any
Junior Priority Representative, the Borrowers or any other Grantor; provided, however, that (i) no such amendment, waiver or consent shall (A) remove assets or property subject to the Junior Priority Liens or release any such
Liens, except to the extent that such release is permitted or required by Section 5.01(a) of this Agreement and provided that there is a concurrent release of the corresponding Senior Liens or (B) amend, modify or otherwise affect the
rights or duties of any Junior Priority Representative in its role as Junior Priority Representative without its prior written consent and (ii) written notice of such amendment, waiver or consent shall have been given by the Borrowers to each
Junior Priority Representative within ten (10) Business Days after the effectiveness of such amendment, waiver or consent.
(e) The
Parent Borrower agrees to deliver to each of the Designated Senior Representative and the Designated Junior Priority Representative copies of (i) any amendments, supplements or other modifications to the Senior Debt Documents or the Junior
Priority Debt Documents and (ii) any new Senior Debt Documents or Junior Priority Debt Documents promptly after effectiveness thereof.
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SECTION 5.04. Rights as Unsecured Creditors. The Junior Priority Representatives and
the Junior Priority Debt Parties may exercise rights and remedies as unsecured creditors against the Borrowers and any other Grantor in accordance with the terms of the Junior Priority Debt Documents and applicable law so long as such rights and
remedies do not violate any express provision of this Agreement (including any provision prohibiting or restricting the Junior Priority Debt Parties from taking various actions or making various objections). Nothing in this Agreement shall prohibit
the receipt by any Junior Priority Representative or any Junior Priority Debt Party of the required payments of principal, premium, interest, fees and other amounts due under the Junior Priority Debt Documents so long as such receipt is not the
direct or indirect result of the exercise in contravention of this Agreement by a Junior Priority Representative or any Junior Priority Debt Party of rights or remedies as a secured creditor in respect of Shared Collateral in contravention of this
Agreement. In the event any Junior Priority Representative or any Junior Priority Debt Party becomes a judgment lien creditor in respect of Shared Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Junior
Priority Debt Obligations, such judgment lien shall be subordinated to the Liens securing Senior Obligations on the same basis as the other Liens securing the Junior Priority Debt Obligations are so subordinated to such Liens securing Senior
Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the Senior Representatives or the Senior Secured Parties may have with respect to the Senior Collateral.
SECTION 5.05. Bailment for Perfection of Security Interest.
(a) The Possessory Collateral shall be delivered to the Bailee Agent and by accepting such Possessory Collateral such Bailee Agent agrees to
hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of the Junior Priority
Representatives and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Junior Priority Collateral Documents, in each case, subject to the terms and
conditions of this Section 5.05.
(b) Except as otherwise specifically provided herein, until the Discharge of Senior Obligations has
occurred, the Senior Representatives and the Senior Secured Parties shall be entitled to deal with the Possessory Collateral in accordance with the terms of the Senior Debt Documents as if the Liens under the Junior Priority Collateral Documents did
not exist. The rights of the Junior Priority Representatives and the Junior Priority Debt Parties with respect to the Possessory Collateral shall at all times be subject to the terms of this Agreement.
(c) The Senior Representatives and the Senior Secured Parties shall have no obligation whatsoever to the Junior Priority Representatives or any
Junior Priority Debt Party to assure that any of the Possessory Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Shared Collateral, except as expressly set
forth in this Section 5.05. The duties or responsibilities of the Senior Representatives under this Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in paragraphs
(a) and (b) of this Section 5.05 as sub-agent and gratuitous bailee for the relevant Junior Priority Representative for purposes of perfecting the Lien held by such Junior Priority Representative.
(d) The Senior Representatives shall not have by reason of the Junior Priority Collateral Documents or this Agreement, or any other document, a
fiduciary relationship in respect of any Junior Priority Representative or any Junior Priority Debt Party, and each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility,
hereby waives and releases the Senior Representatives from all claims and liabilities arising pursuant to the Senior Representatives’ roles under this Section 5.05 as sub-agents and gratuitous
bailees with respect to the Shared Collateral.
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(e) Upon the Discharge of Senior Obligations, each applicable Senior Representative shall,
at the Grantors’ sole cost and expense, (i) (A) deliver to the Designated Junior Priority Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by
such Senior Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Possessory Collateral, together with any necessary endorsements and notices to depositary banks, securities
intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, or (B) direct and deliver such
Shared Collateral as a court of competent jurisdiction may otherwise direct, (ii) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued
by such insurance carrier and (iii) notify any Governmental Authority involved in any condemnation or similar proceeding involving any Grantor that the Designated Junior Priority Representative is entitled to approve any awards granted in such
proceeding. The Borrowers and the other Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify each Senior Representative for loss or damage suffered by such Senior Representative;
provided that the Borrowers shall not indemnify any Senior Representative for loss or damages suffered by such Senior Representative as a result of such Senior Representative’s own willful misconduct, gross negligence or bad faith. The Senior
Representatives have no obligations to follow instructions from any Junior Priority Representative or any other Junior Priority Debt Party in contravention of this Agreement.
(f) None of the Senior Representatives nor any of the other Senior Secured Parties shall be required to marshal any present or future
collateral security for any obligations of the Parent Borrower or any Subsidiary to any Senior Representative or any Senior Secured Party under the Senior Debt Documents or any assurance of payment in respect thereof, or to resort to such collateral
security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing
or arising.
SECTION 5.06. When Discharge of Senior Obligations Deemed To Not Have Occurred. If, at any time substantially
concurrently with the occurrence of the Discharge of Senior Obligations, any Borrower or any Subsidiary consummates any Refinancing of any Senior Obligations, then such Discharge of Senior Obligations (other than in respect of payment of indemnities
surviving the Discharge of Senior Obligations) shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of such designation as a result of the occurrence of
such first Discharge of Senior Obligations) and the applicable agreement governing such Senior Obligations shall automatically be treated as a Senior Debt Document for all purposes of this Agreement, including for purposes of the Lien priorities and
rights in respect of Shared Collateral set forth herein and the agent, representative or trustee for the holders of such Senior Obligations shall be the Senior Representative for all purposes of this Agreement; provided that such Senior
Representative shall have become a party to this Agreement pursuant to Section 8.09 of this Agreement. Upon receipt of notice of such incurrence (including the identity of the new Senior Representative) from the Parent Borrower, each Junior
Priority Representative (including the Designated Junior Priority Representative) shall promptly (i) enter into such documents and agreements, including amendments or supplements to this Agreement, as the Parent Borrower or such new Senior
Representative shall reasonably request in writing in order to provide the new Senior
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Representative the rights of a Senior Representative contemplated hereby, (ii) deliver to such Senior Representative, to the extent that it is legally permitted to do so, all Shared
Collateral, including all proceeds thereof, held or controlled by such Junior Priority Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Possessory Collateral, together with any
necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or
access to Shared Collateral and (iii) notify, upon request from a Grantor, any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such
insurance carrier and (iv) notify, upon request from a Grantor, and Governmental Authority involved in any condemnation or similar proceeding involving a Grantor that the new Senior Representative is entitled to approve any awards granted in
such proceeding.
SECTION 5.07. Purchase Right. Without prejudice to the enforcement of the Senior Secured Parties remedies, the
Senior Secured Parties agree that following (a) the acceleration of all Senior Obligations in accordance with the terms of the Senior Debt Documents or (b) the commencement of an Insolvency or Liquidation Proceeding (each, a
“Purchase Event”), within thirty (30) days of the Purchase Event, one or more of the Junior Priority Debt Parties may request, and the Senior Secured Parties hereby offer the Junior Priority Debt Parties the option, to
purchase all, but not less than all, of the aggregate amount of outstanding Senior Obligations outstanding at the time of purchase at par, plus any premium, if any, that would be applicable upon prepayment of the Senior Obligations and accrued and
unpaid interest, fees, and expenses, without warranty or representation or recourse (except for representations and warranties required to be made by assigning lenders or noteholders pursuant to any applicable Senior Debt Document). If such right is
exercised, the parties shall endeavor to close promptly thereafter but in any event within ten (10) Business Days of the request. If one or more of the Junior Priority Debt Parties exercise such purchase right, it shall be exercised pursuant to
documentation mutually acceptable to each of the Senior Representatives and the Junior Priority Representative. If none of the Junior Priority Debt Parties exercise such right within thirty (30) days of such Purchase Event, the Senior Secured
Parties shall have no further obligations pursuant to this Section 5.07 for such Purchase Event and may take any further actions in their sole discretion in accordance with the Senior Debt Documents and this Agreement.
ARTICLE VI
Insolvency or
Liquidation Proceedings.
SECTION 6.01. Financing Issues. Until the Discharge of Senior Obligations has occurred, if the
Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and any Senior Representative or any Senior Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or other collateral or to
consent (or not object) to the Borrowers’ or any other Grantor’s obtaining financing under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP
Financing”), then each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it will raise no objection to and will not otherwise contest
(i) such sale, use or lease of such cash or other collateral, unless each Senior Representative shall oppose or object to such use of cash collateral (in which case, no Junior Priority Representative nor any other Junior Priority Debt Party
shall seek any relief in connection therewith that is inconsistent with the relief being sought by the Senior Secured Parties); or (ii) such DIP Financing, unless each Senior Representative shall oppose or object to such DIP Financing
(provided that the foregoing shall not prevent the Junior Priority Debt Parties from proposing any
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other DIP Financing to any Grantors or to a court of competent jurisdiction), and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03,
will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated or pari passu with such DIP Financing, will subordinate
(and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Junior Priority Debt Obligations are so
subordinated to Liens securing Senior Obligations under this Agreement, (y) any adequate protection Liens provided to the Senior Secured Parties, and (z) to any “carve-out” for
professional and United States Trustee fees agreed to by the Senior Representatives. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, further agrees that, until
the Discharge of Senior Obligations has occurred, it will raise no objection to and will not otherwise contest or oppose (a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of
Senior Obligations made by any Senior Representative or any other Senior Secured Party; (b) any exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral in any Insolvency
or Liquidation Proceeding or otherwise under Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law; (c) any other request for judicial relief made in any court by any Senior Secured Party relating to
the lawful enforcement of any Lien on Senior Collateral; or (d) any election made by any Senior Representative or any other Senior Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any
other Bankruptcy Law with respect to any of the Shared Collateral, or (e) any sale or other disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets or property
of any Grantor to which any Senior Representative has consented or not objected that provides, to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Priority Debt
Obligations will attach to the proceeds of the sale or other disposition on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Priority Debt
Obligations pursuant to this Agreement; provided, that the Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties, reserves the right to raise any objection that could be raised by an unsecured creditor
of the Grantors to such proposed bidding procedures prior to approval of such procedures by the Bankruptcy Court; provided, however, that the Junior Priority Debt Parties are not deemed to have waived any rights to credit bid on the
Shared Collateral in any such disposition in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of
the Senior Obligations. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that notice received two Business Days prior to the entry of an order approving
such usage of cash or other collateral or approving such financing shall be adequate notice.
SECTION 6.02. Relief from the Automatic
Stay. Until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that none of them shall seek relief
from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof, in each case in respect of any Shared Collateral, without the prior written consent of the Designated Senior
Representative.
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SECTION 6.03. Adequate Protection. Each Junior Priority Representative, for itself
and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that none of them shall (A) object, contest or support any other Person objecting to or contesting (a) any request by any Senior
Representative or any Senior Secured Parties for adequate protection, (b) any objection by any Senior Representative or any Senior Secured Parties to any motion, relief, action or proceeding based on any Senior Representative’s or Senior
Secured Party’s claiming a lack of adequate protection or (c) the allowance and/or payment of interest, fees, expenses or other amounts of any Senior Representative or any other Senior Secured Party under Section 506(b) of the
Bankruptcy Code or any similar provision of any other Bankruptcy Law or (B) assert or support any claim for costs or expenses of preserving or disposing of any Collateral under Section 506(c) of the Bankruptcy Code or any similar provision
of any other Bankruptcy Law. Notwithstanding anything contained in this Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (i) if the Senior Secured Parties (or any subset thereof) are granted adequate
protection in the form of a Lien on additional or replacement collateral and/or a superpriority claim in connection with any DIP Financing or use of cash collateral under Section 363 or 364 of the Bankruptcy Code or any similar provision of any
other Bankruptcy Law, then each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, may seek or request adequate protection in the form of a Lien on such additional or
replacement collateral and/or superpriority claim (as applicable), which (A) Lien is subordinated to the Liens securing and providing adequate protection for all Senior Obligations and such DIP Financing (and all obligations relating thereto)
on the same basis as the other Liens securing the Junior Priority Debt Obligations are so subordinated to the Liens securing Senior Obligations under this Agreement and (B) superpriority claim is subordinated to all superpriority claims of the
Senior Secured Parties on the same basis as the other claims of the Junior Priority Debt Parties are so subordinated to the claims of the Senior Secured Parties under this Agreement, (ii) in the event any Junior Priority Representatives, for
themselves and on behalf of the Junior Priority Debt Parties under their Junior Priority Debt Facilities, seek or request adequate protection and such adequate protection is granted (in each instance, to the extent such grant is otherwise
permissible under the terms and conditions of this Agreement) in the form of a Lien on additional or replacement collateral, then such Junior Priority Representatives, for themselves and on behalf of each Junior Priority Debt Party under their
Junior Priority Debt Facilities, agree that each Senior Representative shall also be granted a senior Lien on such additional or replacement collateral as security and adequate protection for the Senior Obligations and any such DIP Financing and
that any Lien on such additional or replacement collateral securing or providing adequate protection for the Junior Priority Debt Obligations shall be subordinated to the Liens on such collateral securing the Senior Obligations and any such DIP
Financing (and all obligations relating thereto) and any other Liens granted to the Senior Secured Parties as adequate protection on the same basis as the other Liens securing the Junior Priority Debt Obligations are so subordinated to such Liens
securing Senior Obligations under this Agreement (and, to the extent the Senior Secured Parties are not granted such adequate protection in such form, any amounts recovered by or distributed to any Junior Priority Debt Party pursuant to or as a
result of any Lien on such additional or replacement collateral so granted to the Junior Priority Debt Parties shall be subject to Section 4.02 of this Agreement), and (iii) in the event any Junior Priority Representatives, for themselves
and on behalf of the Junior Priority Debt Parties under their Junior Priority Debt Facilities, seek or request adequate protection and such adequate protection is granted (in each instance, to the extent such grant is otherwise permissible under the
terms and conditions of this Agreement) in the form of a superpriority claim, then such Junior Priority Representatives, for themselves and on behalf of each Junior Priority Debt Party under their Junior Priority Debt Facilities, agree that each
Senior Representative shall also be granted adequate protection in the form of a superpriority claim, which superpriority claim shall be senior to the superpriority claim of the Junior Priority Debt Parties (and, to the extent the Senior Secured
Parties are not granted such adequate protection in such form, any amounts recovered by or distributed to any Junior Priority Debt Party pursuant to or as a result of any such superpriority claim so granted to the Junior Priority Debt Parties shall
be subject to Section 4.02 of this Agreement). Notwithstanding anything herein to the contrary, the Junior Priority Representative shall have irrevocably agreed, pursuant to Section 1129(a)(9) of the Bankruptcy Code, on behalf
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of itself and the Junior Priority Debt Parties, in any stipulation or order granting adequate protection of its junior interest in the Shared Collateral, that such junior super priority claims
may be paid under any plan of reorganization in any combination of cash, debt, equity or other property having a value on the effective date of such plan equal to the allowed amount of such claims. Without limiting the generality of the foregoing,
to the extent that the Senior Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses, and/or other cash payments, then the Junior Priority Representative, for itself and on
behalf of each Junior Priority Debt Party under their Junior Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other
cash payments (as applicable), subject to the right of the Senior Secured Parties to object to the reasonableness of the amounts of fees and expenses or other cash payments so sought by the Junior Priority Debt Parties.
SECTION 6.04. Preference Issues. If any Senior Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to
disgorge, turn over or otherwise pay any amount to the estate of the Borrowers or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be fraudulent or preferential in any
respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then the Senior Obligations shall be reinstated to the extent of such Recovery
and deemed to be outstanding as if such payment had not occurred and the Senior Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Senior Obligations with respect to all such recovered amounts. If this Agreement
shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Each
Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise
relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated
and turned over for application in accordance with the priorities set forth in this Agreement.
SECTION 6.05. Separate Grants of
Security and Separate Classifications. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, acknowledges and agrees that (a) the grants of Liens pursuant
to the Senior Collateral Documents and the Junior Priority Collateral Documents constitute separate and distinct grants of Liens and (b) because of, among other things, their differing rights in the Shared Collateral, the Junior Priority Debt
Obligations are fundamentally different from the Senior Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed, or adopted in an Insolvency or Liquidation Proceeding.
To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that any claims of the Senior Secured Parties and the Junior Priority Debt Parties in respect of the Shared Collateral constitute a
single class of claims (rather than separate classes of senior and junior secured claims), then each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby
acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Shared Collateral, with the effect being that, to the extent that the aggregate
value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Junior Priority Debt Parties), the Senior Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of
principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees, and expenses (whether or
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not allowed or allowable) before any distribution is made in respect of the Junior Priority Debt Obligations, and each Junior Priority Representative, for itself and on behalf of each Junior
Priority Debt Party under its Junior Priority Debt Facility, hereby acknowledges and agrees to turn over to the Designated Senior Representative amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of
this sentence, even if such turnover has the effect of reducing the claim or recovery of the Junior Priority Debt Parties.
SECTION 6.06.
No Waivers of Rights of Senior Secured Parties. Nothing contained herein shall, except as expressly provided herein, prohibit or in any way limit any Senior Representative or any other Senior Secured Party from objecting in any Insolvency or
Liquidation Proceeding or otherwise to any action taken by any Junior Priority Debt Party, including the seeking by any Junior Priority Debt Party of adequate protection or the assertion by any Junior Priority Debt Party of any of its rights and
remedies under the Junior Priority Debt Documents or otherwise.
SECTION 6.07. Application. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, shall be effective before, during and after the commencement of any
Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition
therefor, subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a
debtor-in-possession and any receiver or trustee for such Grantor.
SECTION 6.08. Other Matters. To the extent that any Junior Priority Representative or any Junior Priority Debt Party has or acquires
rights under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, such Junior Priority Representative, on behalf of itself and each Junior
Priority Debt Party under its Junior Priority Debt Facility, or such Junior Priority Debt Party agrees not to assert any such rights without the prior written consent of each Senior Representative, provided that if requested by any Senior
Representative, such Junior Priority Representative shall timely exercise such rights in the manner requested by the Senior Representatives (acting unanimously), including any rights to payments in respect of such rights.
SECTION 6.09. 506(c) Claims. Until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, on behalf of
itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to
or on a parity with the Liens securing the Senior Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
SECTION 6.10. Reorganization Securities.
(a) If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the
reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of both the Senior Obligations and the Junior Priority Debt Obligations, then, to the extent the debt obligations
distributed on account of the Senior Obligations and on account of the Junior Priority Debt Obligations are secured by Liens upon the same assets or property, the provisions of this Agreement will survive the distribution of such debt obligations
pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
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(b) No Junior Priority Debt Party (whether in the capacity of a secured creditor or an
unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any plan of reorganization or similar dispositive restructuring plan that violates the payment priorities set forth in Section 4.01 of this
Agreement or is otherwise inconsistent with the terms of this Agreement other than with the prior written consent of the Designated Senior Representative or to the extent any such plan is proposed or supported by the number of
Senior Secured Parties required under Section 1126(c) of the Bankruptcy Code.
(c) Any Junior Priority Debt Parties may bid
for or purchase Shared Collateral at any public, private or judicial foreclosure upon such Shared Collateral initiated by any Senior Secured Party or any other person, or any sale of Shared Collateral during an Insolvency or Liquidation Proceeding
so long as such credit bid provides for the payment in full in cash of the Senior Obligations.
SECTION 6.11.
Section 1111(b) of the Bankruptcy Code. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, shall not object to, oppose, support any
objection, or take any other action to impede, the right of any Senior Secured Party to make an election under Section 1111(b)(2) of the Bankruptcy Code. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt
Party under its Junior Priority Debt Facility, waives any claim it may hereafter have against any senior claimholder arising out of the election by any Senior Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code.
SECTION 6.12. Post-Petition Interest.
(a) None of the Junior Priority Representatives or any other Junior Priority Debt Party shall oppose or seek to challenge any claim by any
Senior Representative or any other Senior Class Debt Party for allowance in any Insolvency or Liquidation Proceeding of Senior Obligations of claims for post-petition interest, fees or expenses, under Section 506(b) of the Bankruptcy Code
or otherwise (for this purpose ignoring all claims held by the Junior Priority Debt Parties).
(b) None of the Senior Representatives or
any other Senior Class Debt Party shall oppose or seek to challenge any claim by the Junior Priority Representative or any other Junior Priority Debt Party for allowance in any Insolvency or Liquidation Proceeding of Junior Priority Debt
Obligations consisting of claims for post-petition interest, fees or expenses, under Section 506(b) of the Bankruptcy Code or otherwise, so long as the Senior Secured Parties are receiving post-petition interest, fees, or expenses in at least
the same form being requested by such Junior Priority Representative or such other Junior Priority Debt Party and then only to the extent of the value of the Lien of the Junior Priority Representative on behalf of the Junior Priority Debt Parties on
the Shared Collateral (after taking into account the Senior Obligations).
ARTICLE VII
Reliance; Etc.
SECTION
7.01. Reliance. All loans and other extensions of credit made or deemed made on and after the date hereof by the Senior Secured Parties to the Borrowers or any Subsidiary shall be deemed to have been given and made in reliance upon this
Agreement. Each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, acknowledges that it and such Junior Priority Debt Parties have,
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independently and without reliance on any Senior Representative or other Senior Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis
and decision to enter into the Junior Priority Debt Documents to which they are party or by which they are bound, this Agreement and the transactions contemplated hereby and thereby, and they will continue to make their own credit decisions in
taking or not taking any action under the Junior Priority Debt Documents or this Agreement.
SECTION 7.02. No Warranties or
Liability. Each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, acknowledges and agrees that neither any Senior Representative nor any other Senior Secured Party
has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Senior Debt Documents, the ownership of any Shared Collateral or
the perfection or priority of any Liens thereon. The Senior Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the Senior Debt Documents in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate, and the Senior Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Junior Priority Representatives and the Junior Priority Debt Parties have in
the Shared Collateral or otherwise, except as otherwise provided in this Agreement. Neither any Senior Representative nor any other Senior Secured Party shall have any duty to any Junior Priority Representative or Junior Priority Debt Party to act
or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreement with the Parent Borrower or any Subsidiary (including the Junior Priority Debt Documents), regardless
of any knowledge thereof that they may have or be charged with. Except as expressly set forth in this Agreement, the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties have
not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectability of any of the
Senior Obligations, the Junior Priority Debt Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right to transfer any of the Shared Collateral or
(c) any other matter except as expressly set forth in this Agreement.
SECTION 7.03. Obligations Unconditional. All rights,
interests, agreements and obligations of the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Senior Debt Document or any Junior Priority Debt Document;
(b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the Senior Obligations or
Junior Priority Debt Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the Senior Debt Documents or of the terms of the Initial
Junior Lien Agreement or any other Junior Priority Debt Document;
(c) any exchange of any security interest in any Shared
Collateral or any other collateral or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Senior Obligations or Junior Priority Debt Obligations or any guarantee thereof;
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(d) the commencement of any Insolvency or Liquidation Proceeding in respect
of any Borrower or any other Grantor; or
(e) any other circumstances that otherwise might constitute a defense available
to (i) any Borrower or any other Grantor in respect of the Senior Obligations (other than the Discharge of Senior Obligations subject to Sections 5.06 and 6.04 of this Agreement) or (ii) any Junior Priority Representative or Junior
Priority Debt Party in respect of this Agreement.
ARTICLE VIII
Miscellaneous
SECTION
8.01. Conflicts.
(a) In the event of any conflict between the provisions of this Agreement and the provisions of any Senior Debt
Document or any Junior Priority Debt Document, the provisions of this Agreement shall govern. Notwithstanding the foregoing, (a) the relative rights and obligations of the Senior Representatives and the Senior Secured Parties (as amongst
themselves) with respect to any Senior Collateral shall be governed by the terms of the Applicable Intercreditor Agreement among such parties and in the event of any conflict between such Applicable Intercreditor Agreement and this Agreement as to
such relative rights and obligations, the provisions of such Applicable Intercreditor Agreement shall control solely with respect to such rights and obligations and (b) the relative rights and obligations of the Junior Priority Representatives
and the Junior Priority Debt Parties (solely as amongst themselves) with respect to any Junior Priority Collateral shall be governed by the terms of any Applicable Intercreditor Agreement and in the event of any conflict between any Applicable
Intercreditor Agreement and this Agreement, the provisions of such Applicable Intercreditor Agreement shall control solely with respect to such rights and obligations.
SECTION 8.02. Continuing Nature of this Agreement; Severability. Subject to Section 6.04 of this Agreement, this Agreement shall
continue to be effective until the Discharge of Senior Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the Senior Secured Parties may continue, at any time and without notice to the Junior Priority
Representatives or any Junior Priority Debt Party, to extend credit and other financial accommodations and lend monies to or for the benefit of any Borrower or any Subsidiary constituting Senior Obligations in reliance hereon. The terms of this
Agreement shall survive and continue in full force and effect in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8.03. Amendments; Waivers.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
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The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) This Agreement may be amended in writing signed by each Representative (in each case, acting in accordance with the documents governing
the applicable Debt Facility); provided that any such amendment, supplement or waiver which by the terms of this Agreement requires the Parent Borrower’s consent or which increases the obligations or reduces the rights of, or otherwise
materially adversely affects, any Borrower or any Grantor, shall require the consent of the Parent Borrower. Any such amendment, supplement or waiver shall be in writing and shall be binding upon the Senior Secured Parties and the Junior Priority
Debt Parties and their respective successors and assigns.
(c) Notwithstanding the foregoing, without the consent of any Secured Party
(and with respect to any amendment or modification which by the terms of this Agreement requires the Parent Borrower’s consent or which increases the obligations or reduces the rights of the any Borrower or any other Grantor, with the consent
of the Parent Borrower), any Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 8.09 of this Agreement and upon such execution and delivery, such Representative and the Secured
Parties and Senior Obligations or Junior Priority Debt Obligations of the Debt Facility for which such Representative is acting shall be subject to the terms hereof.
SECTION 8.04. Information Concerning Financial Condition of the Parent Borrower and the Subsidiaries. The Senior Representatives, the
Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties shall each be responsible for keeping themselves informed of (a) the financial condition of the Parent Borrower and the Subsidiaries and all
endorsers or guarantors of the Senior Obligations or the Junior Priority Debt Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the Senior Obligations or the Junior Priority Debt Obligations. The Senior
Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such
circumstances or otherwise. In the event that any Senior Representative, any Senior Secured Party, any Junior Priority Representative or any Junior Priority Debt Party, in its sole discretion, undertakes at any time or from time to time to provide
any such information to any other party, it shall be under no obligation to (i) make, and the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties shall not make or be
deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional information or to provide
any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is
otherwise required to maintain confidential.
SECTION 8.05. Subrogation. Each Junior Priority Representative, on behalf of itself
and each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby agrees not to assert any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Senior Obligations has occurred.
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SECTION 8.06. Application of Payments. Except as otherwise provided herein, all
payments received by the Senior Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the Senior Obligations as the Senior Secured Parties, in their sole discretion, deem appropriate, consistent with the terms
of the Senior Debt Documents. Except as otherwise provided herein, each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, assents to any such extension or postponement of
the time of payment of the Senior Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the Senior Obligations and to the
addition or release of any other Person primarily or secondarily liable therefor.
SECTION 8.07. Additional Grantors. The Parent
Borrower agrees that, if any Subsidiary shall become a Grantor after the date hereof, it will promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Annex I. Upon such execution and delivery,
such Subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be
acknowledged by the Designated Junior Priority Representative and the Designated Senior Representative. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a
party to this Agreement.
SECTION 8.08. Dealings with Grantors. Upon any application or demand by any Borrower or any Grantor to
any Representative to take or permit any action under any of the provisions of this Agreement or under any Collateral Document (if such action is subject to the provisions hereof), at the request of such Representative, such Borrower or Grantor, as
appropriate, shall furnish to such Representative a certificate of an Authorized Officer (an “Officer’s Certificate”) stating that all conditions precedent, if any, provided for in this Agreement or such Collateral Document,
as the case may be, relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Agreement or any
Collateral Document relating to such particular application or demand, no additional certificate or opinion need be furnished.
SECTION
8.09. Additional Debt Facilities. To the extent, but only to the extent, permitted by the provisions of the then extant Senior Debt Documents and Junior Priority Debt Documents, the Borrowers may incur or issue and sell one or more series or
classes of Additional Junior Priority Debt and one or more series or classes of Additional Senior Debt. Any such additional class or series of Junior Priority Debt (the “Junior Priority Class Debt”) may be
secured by a junior priority, subordinated Lien on Shared Collateral, in each case under and pursuant to the relevant Junior Priority Collateral Documents for such Junior Priority Class Debt, if and subject to the condition that the
Representative of any such Junior Priority Class Debt (each, a “Junior Priority Class Debt Representative”), acting on behalf of the holders of such Junior Priority Class Debt (such Representative and
holders in respect of any Junior Priority Class Debt being referred to as the “Junior Priority Class Debt Parties”), becomes a party to this Agreement by satisfying conditions (A) through (C), as
applicable, of the immediately succeeding paragraph. Any such additional class or series of Senior Facilities (the “Senior Class Debt”; and the Senior Class Debt and Junior Priority Class Debt,
collectively, the “Class Debt”) may be secured by a senior Lien on Shared Collateral, in each case under and pursuant to the relevant Senior Collateral Documents, if and subject to the condition that the
Representative of any such Senior Class Debt (each, a “Senior Class Debt Representative”; and the Senior Class Debt Representatives and Junior Priority Class Debt Representatives, collectively,
the “Class Debt Representatives”), acting on behalf of the
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holders of such Senior Class Debt (such Representative and holders in respect of any such Senior Class Debt being referred to as the “Senior Class Debt
Parties”; and the Senior Class Debt Parties and Junior Priority Class Debt Parties, collectively, the “Class Debt Parties”), becomes a party to (x) an Applicable Intercreditor Agreement
pursuant to Article VIII and (y) this Agreement by satisfying the conditions set forth in clauses (A) through (C), as applicable, of the immediately succeeding paragraph. In order for a Class Debt Representative to become a party to
this Agreement:
(A) such Class Debt Representative shall have executed and delivered a Joinder Agreement
substantially in the form of Annex II (if such Representative is a Junior Priority Class Debt Representative) or Annex III (if such Representative is a Senior Class Debt Representative) pursuant to which it becomes a Representative
hereunder, and the Class Debt in respect of which such Class Debt Representative is the Representative constitutes Additional Senior Debt Obligations or Additional Junior Priority Debt Obligations, as applicable, and the related
Class Debt Parties become subject hereto and bound hereby as Additional Senior Debt Parties or Additional Junior Priority Debt Parties, as applicable;
(B) the Parent Borrower (a) shall have delivered to the Designated Senior Representative an Officer’s Certificate
identifying the obligations to be designated as Additional Senior Debt Obligations or Additional Junior Priority Debt Obligations, as applicable, and the initial aggregate principal amount or face amount thereof and certifying that such obligations
are permitted to be incurred and secured (I) in the case of Additional Senior Debt Obligations, on a senior basis under each of the Senior Debt Documents and (II) in the case of Additional Junior Priority Debt Obligations, on a junior
basis under each of the Junior Priority Debt Documents and (b) if requested, shall have delivered true and complete copies of each of the Junior Priority Debt Documents or Senior Debt Documents, as applicable, relating to such Class Debt,
certified as being true and correct by an authorized officer of the Parent Borrower; and
(C) the Junior Priority Debt
Documents or Senior Debt Documents, as applicable, relating to such Class Debt shall provide that each Class Debt Party with respect to such Class Debt will be subject to and bound by the provisions of this Agreement in its capacity
as a holder of such Class Debt.
SECTION 8.10. Refinancings. The Senior Obligations and the Junior Priority Debt may be
increased, exchanged, refinanced or replaced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the refinancing transaction under any Senior Debt Document or any
Junior Priority Debt Document) of any Senior Representative or any Secured Party, all without affecting the Lien priorities provided for herein or the other provisions hereof, so long as permitted by the terms of each Senior Debt Document and Junior
Priority Debt Document. Each Junior Priority Representative hereby agrees that at the request of the Parent Borrower in connection with refinancing or replacement of Senior Obligations (“Replacement Senior Obligations”) it will
enter into an agreement in form and substance reasonably acceptable to the Junior Priority Representative with the agent for the Replacement Senior Obligations containing terms and conditions substantially similar to the terms and conditions of this
Agreement. The Senior Representatives hereby agree, at the request of the Parent Borrower in connection with Refinancing or replacement of Junior Priority Debt Obligations (“Replacement Junior Priority Obligations”), to enter into
an agreement in form and substance reasonably acceptable to the Senior Representatives with the agent for the Replacement Junior Priority Obligations containing terms and conditions substantially similar to the terms and conditions of this
Agreement.
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SECTION 8.11. Consent to Jurisdiction; Waivers. Each Representative, on behalf of
itself and the Secured Parties of the Debt Facility for which it is acting, irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this Agreement and the Collateral Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of
New York or the United States of America located in the Borough of Manhattan, City of New York, and appellate courts from any thereof;
(b) consents and agrees that any such action or proceeding shall be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same and agrees not to commence or support any such
action or proceeding in any other jurisdiction;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Representative) at the address referred to in Section 8.12;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any Secured Party) to effect service of
process in any other manner permitted by law; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in this Section 8.11 any special, exemplary, punitive or consequential damages.
SECTION 8.12. Notices. All notices, requests, demands and other communications provided for or permitted hereunder shall be in writing
and shall be sent:
(A) if to the Borrowers or any Grantor, to the Parent Borrower, at its address at:
Accendra Health, Inc.
435
Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Jonathan A. Leon, Executive Vice President & Chief Financial Officer; Heath H. Galloway, Executive Vice President, General
Counsel & Corporate Secretary
Email: [***]
and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention:
Thomas J. Dobleman, P.C.
Email: thomas.dobleman@kirkland.com
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and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York,
NY 10022
Attention: Paul L. Sandler, P.C.
Email: paul.sandler@kirkland.com
(B) if to the RCF Collateral Agent, to it at:
Bank of America, N.A.
Agency
Management
4500 Amon Carter Blvd.
Mail Code:
TX2-979-02-22
Fort
Worth, TX 76155
Attention: Jennifer Toney, Katie Pounds and Darren Merten
Telephone: (469) 201-9415
Facsimile: (214) 209-9581
Email: jennifer.toney@bofa.com; kathryn.pounds@bofa.com;
darren.merten@bofa.com
(C) if to the TLB Collateral Agent, to it at:
JPMorgan Chase Bank, N.A.
WLS -
Document Workflow Management
10 South Dearborn Street - Floor L2
Mail Code IL1-1190
Chicago, IL 60603
(D) if to the First Lien Notes Collateral Agent, to it at:
Regions Bank
1180 West Peachtree
Street NW, Suite 1400
Atlanta, GA 30309
Attention: Corporate Trust Department
(E) if to the Initial Junior Lien Collateral Agent, to it at:
Regions Bank
1180 West Peachtree
Street NW, Suite 1400
Atlanta, GA 30309
Attention: Corporate Trust Department
(F) if to any other Representative, to it at the address specified by it in the Joinder Agreement delivered by it pursuant to
Section 8.09.
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Unless otherwise specifically provided herein, any notice or other communication herein required or
permitted to be given shall be in writing and, may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of
a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth above or, as to each party, at
such other address as may be designated by such party in a written notice to all of the other parties.
SECTION 8.13. Further
Assurances. Each Senior Representative, on behalf of itself and each Senior Secured Party under the Senior Facility for which it is acting, each Junior Priority Representative, on behalf of itself, and each Junior Priority Debt Party under its
Junior Priority Debt Facility, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate
the terms of, and the Lien priorities contemplated by, this Agreement.
SECTION 8.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 8.15. Binding on Successors and Assigns. This Agreement shall be binding upon the Senior Representatives, the Senior Secured
Parties, the Junior Priority Representatives, the Junior Priority Debt Parties, the Borrowers, the other Grantors which have acknowledged this Agreement and their respective successors and assigns.
SECTION 8.16. Section Titles. The section titles contained in this Agreement are and shall be without substantive meaning or content of
any kind whatsoever and are not a part of this Agreement.
SECTION 8.17. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or other electronic communication
(including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of similar
import in this Agreement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same
effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National
Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
38
SECTION 8.18. Authorization. By its signature, each Person executing this Agreement
on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.
SECTION 8.19. No Third-Party Beneficiaries; Successors and Assigns. The lien priorities set forth in this Agreement and the rights and
benefits hereunder in respect of such lien priorities shall inure solely to the benefit of the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties, and their respective
permitted successors and assigns, and no other Person (including the Grantors, or any trustee, receiver, debtor in possession or bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled to assert such rights. Nothing in this
Agreement is intended to or shall impair the obligations of the any Borrower or any other Grantor, which are absolute and unconditional, to pay the Senior Obligations and the Junior Priority Debt Obligations as and when the same shall become due and
payable in accordance with their terms.
SECTION 8.20. Effectiveness. This Agreement shall become effective when executed and
delivered by the parties hereto.
SECTION 8.21. Collateral Agent and Representative. It is understood and agreed that (a) the
RCF Collateral Agent is entering into this Agreement in its capacity as administrative agent and collateral agent under the RCF Credit Agreement and the provisions of Article IX of the RCF Credit Agreement applicable to the Agents (as defined
therein) thereunder shall also apply to the RCF Collateral Agent hereunder, (b) the TLB Collateral Agent is entering into this Agreement in its capacity as administrative agent and collateral agent under the TLB Credit Agreement and the
provisions of Article IX of the TLB Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the TLB Collateral Agent hereunder, (c) the First Lien Notes Collateral Agent is entering into this Agreement in
its capacity as notes collateral agent under the First Lien Notes Indenture and the provisions of Articles VII and XII of the First Lien Notes Indenture applicable to the Trustee or Notes Collateral Agent (each, as defined therein), as applicable,
thereunder shall also apply to the First Lien Notes Collateral Agent hereunder and (d) the Initial Junior Lien Collateral Agent is entering into this Agreement in its capacity as notes collateral agent under the Initial Junior Lien Agreement
and the provisions of Articles VII and XII of the Initial Junior Lien Agreement applicable to the Trustee or Notes Collateral Agent (each, as defined therein), as applicable, thereunder shall also apply to the Initial Junior Lien Collateral Agent
hereunder.
SECTION 8.22. Relative Rights. Notwithstanding anything in this Agreement to the contrary (except to the extent
contemplated by Sections 5.01(a), 5.01(d) or 5.03(d)), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of any Senior Debt Document, the Initial Junior Lien Agreement or any other Junior
Priority Debt Documents, (b) change the relative priorities of the Senior Obligations or the Liens granted under the Senior Collateral Documents on the Shared Collateral (or any other assets or property) as among the Senior Secured Parties,
(c) otherwise change the relative rights of the Senior Secured Parties in respect of the Shared Collateral as among such Senior Secured Parties or (d) obligate any Borrower or any Grantor to take any action, or fail to take any action,
that would otherwise constitute a breach of, or default under any Senior Debt Document, the Initial Junior Lien Agreement or any other Junior Priority Debt Document.
39
SECTION 8.23. Survival of Agreement. All covenants, agreements, representations and
warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
REGIONS BANK, in its capacity as First Lien Notes Collateral Agent
By:
Name:
Title:
BANK OF AMERICA, N.A., in its capacity as RCF Collateral Agent
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A., in its capacity as TLB Collateral Agent
By:
Name:
Title:
REGIONS BANK, in its capacity as Initial Junior Lien Collateral Agent
By:
Name:
Title:
41
ACKNOWLEDGED AND AGREED:
ACCENDRA HEALTH, INC.,
as the Parent Borrower
By:
Name: Heath H. Galloway
Title: Executive Vice President
APRIA, INC.,
BARISTA
ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC,
each as a Borrower
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name: Michelle Knowles
Title: Secretary
[Signature Page to Junior
Lien Intercreditor Agreement]
O&M BYRAM HOLDINGS, GP, as a Grantor
By:
Barista Acquisition I, LLC; and
Barista Acquisition II, LLC
Its:
Partners
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HOLDINGS I, INC., as a Grantor
By:
Name: Michelle Knowles
Title: Secretary
APRIA HOLDCO LLC,
APRIA HEALTHCARE GROUP LLC,
APRIA HEALTHCARE LLC,
CPAP SLEEP STORE LLC,
HEALTHY LIVING HOME MEDICAL LLC,
LOFTA, each as a Grantor
By:
Name: Heath H. Galloway
Title: Executive Vice President
[Signature Page to Junior
Lien Intercreditor Agreement]
ANNEX I
SUPPLEMENT NO. [ ] dated as of , to the INTERCREDITOR AGREEMENT dated as of [__________] (the “Intercreditor Agreement”),
among [__________], as RCF Collateral Agent, [__________], as TLB Collateral Agent, [__________], as First Lien Notes Collateral Agent, [___________], as Initial Junior Lien Collateral Agent under the Initial Junior Lien Agreement, the other parties
thereto and the additional Representatives from time to time party thereto, and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited
liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS,
INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and Apria, the “Borrowers”), and the other Grantors party thereto.
A. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor
Agreement.
B. The Grantors have entered into the Intercreditor Agreement. Pursuant to the RCF Credit Agreement, the TLB Credit Agreement,
the First Lien Notes Indenture, the Initial Junior Lien Agreement, certain Additional Senior Debt Documents and certain Additional Junior Priority Debt Documents, certain newly acquired or organized Subsidiaries of the Parent Borrower are required
to enter into the Intercreditor Agreement. Section 8.07 of the Intercreditor Agreement provides that such Subsidiaries may become party to the Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement.
The undersigned Subsidiary (the “New Grantor”) is executing this Supplement in accordance with the requirements of the RCF Credit Agreement, the TLB Credit Agreement, the First Lien Notes Indenture, the Initial Junior Lien
Agreement, the Additional Junior Priority Debt Documents and Additional Senior Debt Documents.
Accordingly, the Designated Senior
Representative and the New Grantor agree as follows:
SECTION 1. In accordance with Section 8.07 of the Intercreditor Agreement, the
New Grantor by its signature below becomes a Grantor under the Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor, and the New Grantor hereby agrees to all the terms and provisions of the Intercreditor
Agreement applicable to it as a Grantor thereunder. Each reference to a “Grantor” in the Intercreditor Agreement shall be deemed to include the New Grantor. The Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Designated Senior Representative and the other Secured Parties that this Supplement
has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by Bankruptcy Laws and by general
principles of equity.
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. This Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Supplement that bears the signature of the New Grantor. Delivery
of an executed signature page to this Supplement by facsimile transmission or other electronic
44
communication (including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Supplement. The words “execution,”
“signed,” “signature,” and words of similar import in this Supplement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping
of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law,
including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
SECTION 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in
the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices
hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the Parent Borrower as specified in the
Intercreditor Agreement.
SECTION 8. The Borrowers agree to reimburse the Designated Senior Representative for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative
as required by the applicable Senior Debt Documents.
45
IN WITNESS WHEREOF, the New Grantor, and the Designated Senior Representative have duly
executed this Supplement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY GRANTOR]
By:
Name:
Title:
Acknowledged by:
[ ], as Designated Senior Representative
By:
Name:
Title:
[ ], as Designated Junior Priority Representative
By:
Name:
Title:
46
ANNEX II
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of , to the INTERCREDITOR AGREEMENT dated as of
[______________] (the “Intercreditor Agreement”), among [__________], as RCF Collateral Agent, [__________], as TLB Collateral Agent, [__________], as First Lien Notes Collateral Agent, [___________], as Initial Junior Lien
Collateral Agent under the Initial Junior Lien Agreement, the other parties thereto and the additional Representatives from time to time party thereto, and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia corporation (the
“Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista II”), APRIA,
INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and Apria, the
“Borrowers”), and the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise defined herein
shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. As a condition to the ability of the Borrowers to incur
Junior Priority Class Debt after the date of the Intercreditor Agreement and to secure such Junior Priority Class Debt with the Junior Priority Lien and to have such Junior Priority Class Debt guaranteed by the Grantors, in each case
under and pursuant to the Junior Priority Collateral Documents relating thereto, the Junior Priority Class Debt Representative in respect of such Junior Priority Class Debt is required to become a Representative under, and such Junior
Priority Class Debt and the Junior Priority Class Debt Parties in respect thereof are required to become subject to and bound by, the Intercreditor Agreement. Section 8.09 of the Intercreditor Agreement provides that such Junior
Priority Class Debt Representative may become a Representative under, and such Junior Priority Class Debt and such Junior Priority Class Debt Parties may become subject to and bound by, the Intercreditor Agreement as Additional Junior
Priority Debt Obligations and Additional Junior Priority Debt Parties, respectively, pursuant to the execution and delivery by the Junior Priority Class Debt Representative of an instrument in the form of this Representative Supplement and the
satisfaction of the other conditions set forth in Section 8.09 of the Intercreditor Agreement. The undersigned Junior Priority Class Debt Representative (the “New Representative”) is executing this Supplement in
accordance with the requirements of the Senior Debt Documents and the Junior Priority Debt Documents.
Accordingly, the Designated Senior
Representative and the New Representative agree as follows:
SECTION 1. In accordance with Section 8.09 of the Intercreditor
Agreement, the New Representative by its signature below becomes a Representative under, and the related Junior Priority Class Debt and Junior Priority Class Debt Parties become subject to and bound by, the Intercreditor Agreement as
Additional Junior Priority Debt Obligations and Additional Junior Priority Debt Parties, respectively, with the same force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on
behalf of itself and such Junior Priority Class Debt Parties, hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Junior Priority Representative and to the Junior Priority Class Debt Parties
that it represents as Junior Priority Debt Parties. Each reference to a “Representative” or “Junior Priority Representative” in the Intercreditor Agreement shall be deemed to include the New Representative. The
Intercreditor Agreement is hereby incorporated herein by reference.
47
SECTION 2. The New Representative represents and warrants to the Designated Senior
Representative and the other Secured Parties that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee] under [describe new facility], (ii) this Representative Supplement has
been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Junior Priority Debt Documents relating to such
Junior Priority Class Debt in respect of which the New Representative is the Junior Priority Class Debt Representative provide that, upon the New Representative’s entry into this Agreement, the Junior Priority Class Debt Parties
in respect of such Junior Priority Class Debt will be subject to and bound by the provisions of the Intercreditor Agreement as Junior Priority Debt Parties.
SECTION 3. This Representative Supplement may be executed in counterparts, each of which shall constitute an original but all of which when
taken together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Representative Supplement that bears the signature of the
New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile transmission or other electronic communication (including “.pdf” or “.tif” files) shall be as effective as delivery of
a manually signed counterpart of this Representative Supplement. The words “execution,” “signed,” “signature,” and words of similar import in this Representative Supplement or any notice, certificate, document,
agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed
signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act
of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
SECTION 4. Except as expressly supplemented
hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions
contained in this Representative Supplement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor
Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its signature hereto.
48
SECTION 8. The Borrowers agree to reimburse the Designated Senior Representative for its
reasonable out-of-pocket expenses in connection with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the
Designated Senior Representative as required by the applicable Senior Debt Documents.
49
IN WITNESS WHEREOF, the New Representative and the Designated Senior Representative have
duly executed this Representative Supplement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW REPRESENTATIVE],
as
[ ] for the holders of
[ ]
By:
Name:
Title:
Address for notices:
Attention of:
Telecopy:
[ ],
as Designated Senior Representative
By:
Name:
Title:
50
Acknowledged by:
ACCENDRA HEALTH, INC.
as the Parent Borrower
By:
Name:
Title:
APRIA, INC.,
as
a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
as a Borrower
By:
Name:
Title:
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Title:
51
[EACH SUBSIDIARY GUARANTOR], as a Grantor
By:
Name:
Title:
52
ANNEX III
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of , to the INTERCREDITOR AGREEMENT dated as of [____________] (the
“Intercreditor Agreement”), among [__________], as RCF Collateral Agent, [__________], as TLB Collateral Agent, [__________], as First Lien Notes Collateral Agent, [_____________], as Initial Junior Lien Collateral Agent under the
Initial Junior Lien Agreement, the other parties thereto and the additional Representatives from time to time party thereto, and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia corporation (the “Parent Borrower”),
BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista II”), APRIA, INC., a Delaware corporation
(“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and Apria, the “Borrowers”), and the other Grantors
party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the
Intercreditor Agreement.
B. As a condition to the ability of the Borrowers to incur Senior Class Debt after the date of the
Intercreditor Agreement and to secure such Senior Class Debt with the Senior Lien and to have such Senior Class Debt guaranteed by the Grantors on a senior basis, in each case under and pursuant to the Senior Collateral Documents relating
thereto, the Senior Class Debt Representative in respect of such Senior Class Debt is required to become a Representative under, and such Senior Class Debt and the Senior Class Debt Parties in respect thereof are required to
become subject to and bound by, the Intercreditor Agreement. Section 8.09 of the Intercreditor Agreement provides that such Senior Class Debt Representative may become a Representative under, and such Senior Class Debt and such Senior
Class Debt Parties may become subject to and bound by, the Intercreditor Agreement as Additional Senior Debt Obligations and Additional Senior Debt Parties, respectively, pursuant to the execution and delivery by the Senior Class Debt
Representative of an instrument in the form of this Representative Supplement and the satisfaction of the other conditions set forth in Section 8.09 of the Intercreditor Agreement. The undersigned Senior Class Debt Representative (the
“New Representative”) is executing this Supplement in accordance with the requirements of the Senior Debt Documents and the Junior Priority Debt Documents.
Accordingly, the New Representative agrees as follows:
SECTION 1. In accordance with Section 8.09 of the Intercreditor Agreement, the New Representative by its signature below becomes a
Representative under, and the related Senior Class Debt and Senior Class Debt Parties become subject to and bound by, the Intercreditor Agreement as Additional Senior Debt Obligations and Additional Senior Debt Parties, respectively, with
the same force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on behalf of itself and such Senior Class Debt Parties, hereby agrees to all the terms and provisions of
the Intercreditor Agreement applicable to it as a Senior Representative and to the Senior Class Debt Parties that it represents as Senior Class Debt Parties. Each reference to a “Representative” or “Senior
Representative” in the Intercreditor Agreement shall be deemed to include the New Representative. The Intercreditor Agreement is hereby incorporated herein by reference.
53
SECTION 2. The New Representative represents and warrants to the Designated Senior
Representative and the other Secured Parties that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee] under [describe new facility], (ii) this Representative Supplement has
been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Senior Debt Documents relating to such Senior
Class Debt in respect of which the New Representative is the Senior Class Debt Representative provide that, upon the New Representative’s entry into this Agreement, the Senior Class Debt Parties in respect of such Senior
Class Debt will be subject to and bound by the provisions of the Intercreditor Agreement as Senior Secured Parties.
SECTION 3. This
Representative Supplement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. This Representative Supplement shall become effective when the Designated
Senior Representative shall have received a counterpart of this Representative Supplement that bears the signature of the New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile transmission or other
electronic communication (including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Representative Supplement. The words “execution,” “signed,”
“signature,” and words of similar import in this Representative Supplement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of
records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law,
including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
SECTION 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or
unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions
contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All
communications and notices hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth
below its signature hereto.
54
SECTION 8. The Borrowers agree to reimburse the Designated Senior Representative for its
reasonable out-of-pocket expenses in connection with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the
Designated Senior Representative as required by the applicable Senior Debt Documents.
55
IN WITNESS WHEREOF, the New Representative has duly executed this Representative Supplement
to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW REPRESENTATIVE],
as
[ ] for the holders of
[ ]
By:
Name:
Title:
Address for notices:
Attention of:
Telecopy:
56
Acknowledged by:
ACCENDRA HEALTH, INC.
as the Parent Borrower
By:
Name:
Title:
APRIA, INC.,
as
a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
as a Borrower
By:
Name:
Title:
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Title:
57
[EACH SUBSIDIARY GUARANTOR], as a Grantor
By:
Name:
Title:
58
EX-10.2
EX-10.2
Filename: d100115dex102.htm · Sequence: 7
EX-10.2
Exhibit 10.2
AMENDMENT NO. 2 TO TERM LOAN CREDIT AGREEMENT AND CONSENT
AMENDMENT NO. 2 TO TERM LOAN CREDIT AGREEMENT AND CONSENT, dated as of June 15, 2026 (this “Amendment”), by and among
ACCENDRA HEALTH, INC. (f/k/a OWENS & MINOR, INC.), a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II,
LLC, a Virginia limited liability company (“Barista II”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation (“Byram”), APRIA, INC., a Delaware corporation (“Apria” and, together with
the Parent Borrower, Barista I, Barista II and Byram, collectively, the “Borrowers”), the other Loan Parties party hereto, each Term A-1 Term Lender party hereto (collectively, the
“Consenting Term A-1 Lenders”), each Term B-1 Term Lender party hereto (collectively, the “Consenting Term
B-1 Lenders” and together with the Consenting Term A-1 Lenders, the “Consenting Lenders”), and JPMORGAN CHASE BANK, N.A., as the
Administrative Agent and the Collateral Agent.
RECITALS:
WHEREAS, reference is hereby made to the Term Loan Credit Agreement, dated as of March 29, 2022 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement” and, as amended by this Amendment, the “Credit Agreement”), by and among the Borrowers,
the lending institutions from time to time party thereto and JPMorgan Chase Bank, N.A., as the Administrative Agent and the Collateral Agent (capitalized terms used but not defined herein have the meaning provided in the Credit Agreement);
WHEREAS, (i) the Consenting Term B-1 Lenders constitute the Required Term B-1 Lenders and, immediately following the Term A-1 Term Facility Prepayment, the Required Lenders and (ii) the Consenting Term
A-1 Lenders constitute each Term A-1 Term Lender, in each case, under the Existing Credit Agreement; and
WHEREAS, pursuant to Section 10.01 of the Existing Credit Agreement, the Borrowers have requested that (x) the
Administrative Agent and the Consenting Lenders, as applicable, consent to the First Consent and Second Consent (each as defined below) and (y) the Administrative Agent and the Consenting Lenders, as applicable, amend certain provisions of the
Existing Credit Agreement as set forth herein and, subject to the terms and conditions hereof, the Administrative Agent and the Consenting Lenders, as applicable are willing to do so.
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as
follows:
SECTION 1. Amendment and Consents.
1.1
Amendment No. 2 to the Term Loan Credit Agreement. Effective as of the Amendment
No. 2 Effective Date and subject to the satisfaction (or waiver) of the conditions precedent set forth in Section 2 hereof, (x) to the extent required by Section 10.01(h) or Section 10.01(i) of the
Existing Credit Agreement, the Consenting Term A-1 Lenders and (y) the Consenting Term B-1 Lenders (which, immediately after giving effect to the Term A-1 Term Facility Prepayment, collectively constitute the Required Lenders under the Existing Credit Agreement) agree that: (a) the Credit Agreement is amended as set forth in Exhibit A attached hereto,
such that all of the newly inserted double-
underlined provisions therein (indicated textually in the same manner as the following example: double-underlined
text) shall be deemed to be inserted and all of the stricken text therein (indicated textually in the same manner as the following example: stricken text) shall be deemed to be deleted
therefrom, (b) Schedule 1.01B is hereby deleted in its entirety, (c) Schedules 1.01C, 1.01D, 5.11, 7.01(b), 7.02, 7.03(g), 7.07 and 10.02 to the Credit Agreement are hereby amended and replaced in their entirety with Schedules 1.01C,
1.01D, 5.11, 7.01(b), 7.02, 7.03(g), 7.07 and 10.02 attached hereto in Exhibit B, (d) Exhibits E, F and G to the Credit Agreement are hereby deleted in their entirety, (e) Exhibits A, B, C, D, H, I, J and K to the Credit Agreement
are hereby amended and replaced in their entirety with Exhibits A, B, C, D, H, I, J and K attached hereto in Exhibit C, and (f) Schedules I, II, III and IV to the Security Agreement are hereby amended and replaced in their entirety
with Schedules I, II, III, and IV attached hereto in Exhibit D.
1.2
First Consent. Effective as of the Amendment No. 2 Effective Date and subject to the satisfaction
or waiver of the conditions precedent set forth in Section 2 hereof, the Consenting Lenders consent to the waiver of the application of Section 2.05(b)(ii) of the Credit Agreement with respect to the Net Cash Proceeds
of Dispositions in an amount of Net Cash Proceeds equal to $400,000,000 (the “Waived Proceeds”) and the retention by the Borrowers of the Waived Proceeds for use by the Borrowers and their Restricted Subsidiaries for any purpose
not prohibited by the Credit Agreement (the “First Consent”).
1.3
Second Consent. Effective as of the Amendment No. 2 Effective Date and subject to the satisfaction
or waiver of the conditions precedent set forth in Section 2 hereof, immediately before and immediately after giving effect to the Term A-1 Term Facility Prepayment, the Consenting
Term B-1 Lenders (which, immediately after giving effect to the Term A-1 Term Facility Prepayment, collectively constitute the Required Lenders under the Existing Credit
Agreement), consent to (collectively, the “Second Consent”):
(a)
the Amendment No. 2 Transactions (as defined in the Credit Agreement);
(b)
the entry into the First Lien Intercreditor Agreement (as set forth in Exhibit E attached hereto) by the
Collateral Agent; and
(c)
the entry into the Second Lien Intercreditor Agreement (as set forth in Exhibit F attached hereto) by
the Collateral Agent.
SECTION 2. Conditions to Effectiveness.
2.1
Amendment No. 2 Signing Date. This Amendment shall become effective on the date (the
“Signing Date”) when the Administrative Agent (or its counsel) shall have received a counterpart signature page of this Amendment, duly executed by each of the Borrowers, the other Loan Parties party hereto and the Consenting
Lenders.
2
2.2
Amendment No. 2 Effective Date. The amendments and consents described in
Section 1 shall become effective upon the satisfaction (or waiver by the Required Lenders) of the following conditions precedent (such date, the “Amendment No. 2 Effective Date”):
(a)
Event of Default. No Event of Default shall exist and be continuing immediately after giving effect to
this Amendment.
(b)
Early Settlement Date. Substantially concurrently with the Amendment No. 2 Effective Date, the
Early Settlement Date shall have occurred.
(c)
Prepayment. Substantially concurrently with the Amendment No. 2 Effective Date, the Term A-1 Term Facility shall have been prepaid in full (the “Term A-1 Term Facility Prepayment”).
SECTION 3. Representations and Warranties. By its execution of this Amendment, each Loan Party hereby represents and warrants to the
Administrative Agent and each Consenting Lender that the execution, delivery and performance by each Loan Party of this Amendment (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and
will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or require any payment to be made under (A) any Contractual Obligation exceeding
the Threshold Amount to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject, (iii) result in the creation of any Lien (other than as permitted under the Loan Documents) or (iv) violate any material Law; except (in the case of clauses (b)(ii) and (b)(iv)), to the
extent that such conflict, breach, contravention, payment or violation could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 4. Reaffirmation. As of the Amendment No. 2 Effective Date, each Loan Party hereby consents to the terms of this Amendment and
confirms that each Loan Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Loan Documents the
payment and performance of all “Obligations” under each of the Loan Documents to which it is a party (in each case as such terms are defined in the applicable Loan Document). As of the Amendment No. 2 Effective Date, each Loan Party
acknowledges and agrees that any of the Loan Documents (as they may be modified by this Amendment) to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and
enforceable, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity, and shall not be impaired or limited by the execution
or effectiveness of this Amendment other than to the extent expressly contemplated hereby.
3
SECTION 5. Effect of this Amendment. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. This Amendment shall not constitute a novation of the Credit Agreement as in effect immediately prior to giving effect hereto or any of the Loan Documents. For the avoidance of doubt, on and after the Amendment
No. 2 Effective Date, this Amendment shall for all purposes constitute a Loan Document. On and after the Amendment No. 2 Effective Date, each reference in the Credit Agreement to “this Agreement,” “hereunder,”
“hereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by this Amendment.
SECTION 6. Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except by an instrument or instruments in
writing signed and delivered on behalf of each of the parties hereto.
SECTION 7. Entire Agreement. This Amendment, the Credit Agreement and
the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them
with respect to the subject matter hereof.
SECTION 8. GOVERNING LAW, ETC. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. The provisions of Sections 10.14 and 10.15 of the Credit Agreement are incorporated herein and apply to this Amendment mutatis
mutandis.
SECTION 9. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
4
SECTION 10. Counterparts. This Amendment may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. 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. The words “execution,” “signed,” “signature,” and words of similar import in any Loan Document or any notice, certificate, document, agreement or
instrument in respect thereof shall be deemed to include electronic or digital signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed
signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act of 2000, the New York State Electronic
Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Amendment.
SECTION 11. Release.
(a)
It is hereby agreed that, effective upon the Amendment No. 2 Effective Date, to the greatest extent
authorized by applicable law, in exchange for good and valuable consideration, the adequacy of which is hereby confirmed, (x) each Loan Party, in their capacity as such on behalf of themselves and their Related Parties,1 hereby releases and forever discharges, absolves, and acquits (as the case may be) (i) each other Loan Party and each of their respective
Related Parties in their respective capacities as such and (ii) the Administrative Agent and the Collateral Agent (each in its capacity as such, the “Existing Agent” and collectively, the “Existing
Agents”) and each of their respective Related Parties in their respective capacities as such (hereinafter, all of the above released parties in this clause (x) each in their respective capacities as such, collectively referred to as
the “Released Parties,” and each, a “Released Party”), from any and all claims, counterclaims, demands, damages, losses, costs, expenses (including attorneys’ fees), debts, suits, obligations, liabilities,
cross-claims, interests, suits,
1
For purposes of this Section 11, with respect to each person, “Related
Parties” means each Affiliate (as defined herein) of such person, all funds managed or advised by it or by its Affiliates, and each of the successors, assigns, partners, managers, directors, officers, members, shareholders, unitholders,
equityholders (regardless of whether such interests are held directly or indirectly), limited partners, general partners, investment committee members, managing members, principals, employees, agents, trustees, representatives, attorneys,
accountants and each insurance, environmental, legal, investment, financial, and other advisors and other consultants, agents and sub-advisors of or to such person and of or to such person’s Affiliates.
For purposes of this Section 11, an “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. For purposes
of the foregoing definition of “Affiliate,” “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect
to any person, means 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. Notwithstanding
anything to the contrary in this Amendment, “Related Parties” shall not include the Existing Agents (as defined herein) or any Affiliate of an Existing Agent, or Term B-1 Term Lender.
5
controversies, actions, proceedings, remedies, demands, causes of action, defenses, guaranties, judgments, rights, liabilities, offsets, powers, privileges, licenses, liens, franchises, and
rights to reimbursement, subrogation, contribution, indemnification, recoupment, or other payment (collectively, the “Losses”) of any kind or nature whatsoever, whether individually or collectively, arising on or prior to the date
hereof, whether arising at law or in equity, known or unknown, direct or indirect or derivative, actual or potential, existing or hereinafter arising, liquidated or unliquidated, matured or unmatured, absolute or contingent, foreseen or unforeseen,
asserted or unasserted, disputed or undisputed, secured or unsecured, reduced to judgment or otherwise, and including any rights to indemnity or contribution, in each case whether in law, equity, contract, tort, or arising under federal or state
statutory or common law, or any other applicable international foreign or domestic law, rule, statute, regulation, treaty, duty, requirement, or otherwise (collectively, “Claims”) that any Releasor (as defined herein) may have or
claim to have against any of the Released Parties, in each case, arising out of, relating to, or resulting from any act or omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever arising from or in
connection with or relating to (i) Initial Term B-1 Term Loans or any Loan Documents in respect of such Initial Term B-1 Term Loans and the transactions
contemplated thereby, including any indebtedness or securities incurred or issued by the Loan Parties thereunder, and the preparation, negotiation, pursuit, consideration, evaluation, consummation, implementation, and formulation of such documents
and transactions, (ii) the Loan Parties’ out-of-court restructuring or refinancing efforts, (iii) the distribution of property pursuant to the
Transactions or (iv) the management or operation of the Loan Parties related to any of the foregoing, in each case taking place on or before the Amendment No. 2 Effective Date (collectively, the “Released Matters,”
and such Claims, the “Released Claims”); provided that nothing in this Section 11 shall release or relieve any party from, nor shall it constitute a covenant not to sue in respect of: (A)
any post-Amendment No. 2 Effective Date obligations of any party, including, without limitation, obligations in respect of Initial Term B-1 Term Loans and the other Loan Documents in respect of such
Initial Term B-1 Term Loans, as applicable, and solely to the extent of any rights or obligations therein that survive the Amendment No. 2 Effective Date; (B) any Claims against any party who fails
to execute and deliver any documents or consents required to be executed and delivered by such party in connection with this Amendment; (C) the access of any director or officer of any Loan Party to (i) directors or officers insurance
currently in place for the benefit of any such director or officer or (ii) any right, proceeds, or other benefit in connection with the same; (D) the rights or obligations of any Releasor pursuant to any employment agreement, non-compete agreement, separation agreement, bonus agreement, retention agreement, or any other employment-related letter or similar document entered into between any current or former employee and the Loan Parties;
(E) any
6
rights or Claims to indemnification in the organizational or governing documents of the Loan Parties; (F) any intercompany Claims or interests between one Loan Party and another Loan Party
or any of its Affiliates, as applicable, or any equity interests in any Loan Party, or (G) any Claim or liability to the extent resulting from the actual fraud or willful misconduct of such party (as determined in a final, nonappealable order
by a court of competent jurisdiction), (H) any Claims relating to investments, transactions or other matters other than the Released Matters; or (I) any right of indemnification or reimbursement in favor of the Existing Agents against the Loan
Parties and their respective Related Parties arising under the Credit Agreement and the Loan Documents, as applicable.
(b)
Notwithstanding anything to the contrary in this Amendment, none of the Existing Agents are Releasors.
(c)
Each Loan Party, on its behalf and on behalf of its Related Parties (each, a “Releasor”) to
the greatest extent authorized by applicable law, hereby expressly agrees that the release contemplated by the foregoing Section 11(a) extends to any and all rights granted under Section 1542 of the California Civil
Code (“Section 1542”) or any analogous state law or federal law or regulation are hereby expressly waived. Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
(d)
Each Releasor understands that Section 1542, or a comparable statute, rule, regulation, or order of
another jurisdiction, gives such party the right not to release existing Claims of which such party is not aware, unless such party voluntarily chooses to waive this right. Having been so apprised, each Releasor, on its behalf and on behalf of its
Related Parties, nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for all Released Claims. Each Releasor,
on its behalf and on behalf of its Related Parties, to the greatest extent authorized by applicable law, acknowledges and agrees that the foregoing waiver is an essential and material term of this Amendment and that, without such waiver, the other
parties would not have agreed to the terms of this Amendment. Each Releasor, on its behalf and on behalf of its Related Parties, to the greatest extent authorized by applicable law, hereby represents to the other parties hereto that it understands
and acknowledges that it may hereafter discover facts and legal theories concerning such other parties or the subject matter hereof in addition to or different from those which it now believes to be true. Such Releasor understands and hereby agrees
that the release set forth in this Section 11 shall remain
7
effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories. Such Releasor, on its
behalf and on behalf of its Related Parties, assumes the risk of any mistake of fact or applicable law with regard to any potential Claim released under this Section 11(a) or with regard to any of the facts that are now
unknown to it relating thereto.
(e)
Each Releasor agrees and acknowledges that the Claims which it is releasing under
Section 11(a) include any Claim which such Releasor does not know or suspect to exist in its favor at the time of the giving of the foregoing releases and covenants not to sue which, if known by it, might affect its
decision regarding the releases and covenants not to sue set forth herein. Each Releasor agrees and acknowledges that it might hereafter discover facts or documents in addition to or different from those which it now knows or believes to be true or
exist with respect to the subject matter of any of the Claims, but no Releasor in any capacity shall have any duty to disclose or provide any such facts or documents (whether material or immaterial, known or unknown, suspected or unsuspected,
foreseen or unforeseen) to any other Releasor solely by reason of the releases in Section 11(a), and each Releasor shall be deemed to have fully, finally and forever settled and released any and all Released Claims, whether
known or unknown, concealed, suspected or unsuspected, contingent or non-contingent, assertable directly or derivatively by class representative or individual, which now exist or heretofore have existed upon
any theory of law (whether state, federal, local, or foreign laws, including securities laws), contract, tort, or equity now existing or coming into existence in the future to the extent such Claims are actually released in
Section 11(a). Notwithstanding the foregoing, nothing contained herein is intended to impair or otherwise derogate from any of the representations, warranties or covenants expressly set forth in this Amendment or limit or
otherwise excuse any obligation of any Loan Party under the Loan Documents or any of the rights of the lenders under such respective documents as of the date of this Amendment.
(f)
In the event that any third party, estate, trustee, debtor-in-possession, creditor, creditors’ committee, or any other person or entity is successful in pursuing any Released Claim, or otherwise obtains liens or any other right or benefit in, any
Released Matter (or any Claim or cause of action, including any avoidance, preference, strong arm, or claw back action subsequently arising by operation of an insolvency or creditor rights law, that would have been a Released Claim if the person or
entity bringing such Claim or cause of action were party to the mutual release contained in this Section 11), or in connection with any bankruptcy or insolvency proceeding, is successful in pursuing or receives, directly or
indirectly, any funds, property, or other value on account of any Claim or cause of action against any Released Party that was released hereunder, in each case, each Releasor agrees that it shall (a) not recover any funds, property, or other
value received, awarded,
8
or arising from settlement, judgment, or other resolution of such actual or threatened Claim or cause of action, (b) if it does receive such recovery, shall not commingle such recovery with
any of its other assets, and (c) shall promptly turnover and assign any such recoveries exclusively to, and hold them in trust exclusively for, such Released Party, as applicable, provided that, in no circumstance shall this
Section 11(f) obligate any Releasor or Existing Agent that would have otherwise recovered the full amount of a debt claim (including a
debtor-in-possession financing claim) in a bankruptcy, insolvency, or similar proceeding from other assets to turn over or assign such recoveries or proceeds of
litigation if such person’s receipt of the subject recoveries or proceeds was deemed to be in full or partial satisfaction of such claim (or, if applicable, an adequate protection claim derived from such debt claim that would have otherwise
recovered in full) such that the Releasor or Existing Agent (as applicable) would otherwise be unable to seek repayment on such claim to obtain satisfaction in full from alternative sources. For purposes of this Section 11,
any reference to any Loan Party or Existing Agent shall mean and include, as applicable, such Loan Party or Existing Agent’s Affiliates and successors and assigns, including, without limitation, any estate, receiver, trustee, debtor-in-possession, debtor-in-possession financing lender, or other person or entity.
(g)
Subject to Section 11(a), each of the Releasors hereby further agrees and covenants
not to, and shall not, and shall cause each of its Related Parties to not, individually or with any other person or entity file, commence, or prosecute, or assist or otherwise aid (unless legally compelled) any other person in the filing,
commencement, or prosecution of any charge, lawsuit, complaint or proceeding, whether directly, derivatively, or otherwise, with respect to any Released Matter against any Released Party. If any such proceeding is so commenced, then the Releasor
commencing such proceeding (or whose Related Party commences such proceeding) shall immediately cause it to be dismissed, and the Released Party or other released person or entity subject thereto shall have the right to be reimbursed by the party
that commenced such proceeding (or whose Related Party commenced such proceeding) for all reasonable fees, costs, and expenses incurred in connection therewith, without limitation of any other rights and remedies. For the avoidance of doubt, nothing
herein shall constitute a covenant not to sue in respect of any proceeding seeking a determination that a Claim falls within clause (G) of Section 11(a), and no such proceeding shall constitute a breach of this
Section 11(g).
(h)
Each Releasor understands, acknowledges, and agrees that, after the Amendment No. 2 Effective Date, the
releases set forth in this Section 11 may be pleaded as a full and complete defense to any Released Claim and may be used as a basis for an injunction against any action, suit, or other proceeding without any need to post a
bond or other indemnity which may be instituted, prosecuted, or attempted in breach
9
of the provisions of such release. Each Releasor further agrees that no fact, event, circumstance, evidence, or transaction which could not be asserted or which may hereafter be discovered shall
affect in any manner the final, absolute, and unconditional nature of the releases set forth in this Section 11 and agrees that it shall turn over and return or cause to be turned over and returned any recovery it receives
in respect of a Released Matter (without creating any recourse, contribution, subrogation, or similar Claim, each of which is hereby waived) (other than as described in Section 11(f)). The releases of the Releasors set
forth in this Section 11 are final releases, effective as of the Amendment No. 2 Effective Date, even if there may exist a mistake on the part of any Releasor as to the extent and nature of the Claims of any such
Releasor against any other party. Each of the Releasors acknowledges that it has access to adequate information regarding the terms hereof, and the scope and effect of the releases contained in this Section 11, to make an
informed and knowledgeable decision with regard to entering into this Amendment. Each Releasor agrees and acknowledges that, except as expressly set forth in this Amendment, no other party (or any Related Party of any other party), in any capacity,
has warranted or otherwise made any representations concerning any Released Matter or Released Claim (including any representation or warranty concerning the existence, non-existence, validity or invalidity of
any Released Claim).
SECTION 12. Instruction to the Administrative Agent. By their execution of this Amendment, the Consenting
Lenders hereby authorize and instruct the Administrative Agent (i) to execute and acknowledge this Amendment and (ii) to comply with this Amendment and to take all other actions (or refrain from acting), in each case, as expressly
contemplated hereby to be taken (or refrained from being taken). The direction set forth in this Section 12 constitutes a direction from the Required Lenders, each Term A-1 Term
Lender or the Required Term B-1 Lenders, as applicable, under the provisions of Section 10.01 of the Existing Credit Agreement and shall apply to any and all actions (and inactions) taken by the
Administrative Agent in accordance with such direction.
SECTION 13. Term A-1 Term Facility
Prepayment. Each Consenting Term A-1 Lender hereby waives any breakage loss, costs or other amounts due under Section 3.04 of the Credit Agreement in connection with the Term A-1 Term Facility Prepayment.
[The remainder of this page is intentionally left blank.]
10
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to
execute and deliver this Amendment as of the date first set forth above.
ACCENDRA HEALTH, INC.,
as
the Parent Borrower
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC,
APRIA, INC.,
each as a Borrower
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
/s/ Michelle Knowles
Name:
Michelle Knowles
Title:
Secretary
[Huskies: Signature
Page to Amendment No. 2 to Term Loan Credit Agreement and Consent]
BYRAM HOLDINGS I, INC.,
as a
Guarantor
By:
/s/ Michelle Knowles
Name:
Michelle Knowles
Title:
Secretary
O&M BYRAM HOLDINGS, GP,
as a Guarantor
By:
Barista Acquisition I, LLC; and
Barista
Acquisition II, LLC
Its:
Partners
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President
APRIA HEALTHCARE GROUP LLC,
APRIA HEALTHCARE LLC,
APRIA HOLDCO LLC,
CPAP SLEEP STORE LLC,
HEALTHY LIVING HOME MEDICAL LLC,
LOFTA,
each as a Guarantor
By:
/s/ Heath H. Galloway
Name:
Heath H. Galloway
Title:
Executive Vice President
[Huskies: Signature
Page to Amendment No. 2 to Term Loan Credit Agreement and Consent]
[•],
as a Consenting Term A-1 Lender
By:
Name:
Title:
[Huskies: Signature
Page to Amendment No. 2 to Term Loan Credit Agreement and Consent]
[•],
as a Consenting Term B-1 Lender
By:
Name:
Title:
[Huskies: Signature
Page to Amendment No. 2 to Term Loan Credit Agreement and Consent]
Acknowledged:
JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent and the Collateral Agent
By:
/s/ Marcelo Nicolás Osovi Conti
Name:
Marcelo Nicolás Osovi Conti
Title:
Vice President
[Huskies: Signature
Page to Amendment No. 2 to Term Loan Credit Agreement and Consent]
EXHIBIT A
to Amendment No. 2 to Term Loan Credit Agreement and Consent
Amendments to the Credit Agreement
[See attached.]
Execution VersionConformed Through Amendment No. 2
TERM LOAN CREDIT AGREEMENT
Dated as of March 29, 2022
as amended by
Amendment No. 1 to Term Loan Credit Agreement dated as of November 8, 2024
and Amendment
No. 2 to Term Loan Credit Agreement and Consent dated as of June 15, 2026
among
ACCENDRA HEALTH, INC.
(F/K/A
OWENS & MINOR, INC.),
as the Parent Borrower,
OWENS & MINOR DISTRIBUTION, INC.,
OWENS & MINOR MEDICAL, INC.,
BARISTA
ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC
O&M HALYARD, INC.,
BYRAM HEALTHCARE
CENTERS, INC.,
and
APRIA, INC.
as Borrowers,
CERTAIN OTHER BORROWERS AS MAY BECOME PARTIES HERETO FROM TIME TO TIME,
THE OTHER LENDERS FROM TIME TO TIME PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as Collateral Agent
ARRANGED BY:
JPMORGAN CHASE BANK,
N.A.
BOFA SECURITIES, INC.,
CITIBANK, N.A.,
CITIZENS BANK,
N.A.,
PNC BANK CAPITAL MARKETS LLC,
REGIONS CAPITAL
MARKETS,
CAPITAL ONE, N.A.,
and
KKR CAPITAL MARKETS
LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1
Section 1.01.
Defined Terms
1
Section 1.02.
Other Interpretive Provisions
7378
Section 1.03.
Accounting Terms.
7479
Section 1.04.
Rounding
7479
Section 1.05.
References to Agreements, Laws, Etc.
7479
Section 1.06.
Times of Day.
7580
Section 1.07.
Timing of Payment or Performance.
7580
Section 1.08.
[Reserved].
7580
Section 1.09.
Certain Calculations and Tests.
7580
Section 1.10.
[Reserved].
7681
Section 1.11.
[Reserved].
7681
Section 1.12.
Divisions.
7681
Section 1.13.
Interest Rates; Benchmark Notification.
7681
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
7782
Section 2.01.
The Loans.
7782
Section 2.02.
Borrowings, Conversions and Continuations of Loans.
7782
Section 2.03.
[Reserved].
7984
Section 2.04.
[Reserved].
7984
Section 2.05.
Prepayments.
7984
Section 2.06.
Termination or Reduction of Commitments.
8792
Section 2.07.
Repayment of Loans.
8793
Section 2.08.
Interest.
8893
Section 2.09.
Fees.
8894
Section 2.10.
Computation of Interest and Fees
8894
Section 2.11.
Evidence of Indebtedness.
94
Section 2.12.
Payments Generally.
8994
Section 2.13.
Sharing of Payments.
96
Section 2.14.
Incremental Credit Extensions.
97
Section 2.15.
Extensions of Term Loans.
100
Section 2.16.
Defaulting Lenders
102
Section 2.17.
Permitted Debt Exchange.
103
Section 2.18.
Parent Borrower as Agent
106
ARTICLE III
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
107
Section 3.01.
Taxes.
107
Section 3.02.
[Reserved].
105110
Section 3.03.
Alternate Rate of Interest.
110
Section 3.04.
Funding Losses
108112
Section 3.05.
Matters Applicable to All Requests for Compensation.
108113
i
Section 3.06.
Replacement of Lenders under Certain Circumstances.
109114
Section 3.07.
Illegality.
110115
Section 3.08.
Survival
111116
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
111118
Section 4.01.
Conditions to Closing Date
111118
Section 4.02.
Conditions to All Credit Extensions
114118
ARTICLE V
REPRESENTATIONS AND WARRANTIES
115119
Section 5.01.
Existence, Qualification and Power; Compliance with Laws
115119
Section 5.02.
Authorization; No Contravention
115119
Section 5.03.
Governmental Authorization; Other Consents
115120
Section 5.04.
Binding Effect
116120
Section 5.05.
Financial Statements; No Material Adverse Effect.
116120
Section 5.06.
Litigation
116120
Section 5.07.
Ownership of Property; Liens.
116121
Section 5.08.
Environmental Matters
116121
Section 5.09.
Taxes
117121
Section 5.10.
Compliance with ERISA.
117122
Section 5.11.
Subsidiaries; Equity Interests
117122
Section 5.12.
Margin Regulations; Investment Company Act.
118122
Section 5.13.
Disclosure
118123
Section 5.14.
Intellectual Property; Licenses, Etc.
118123
Section 5.15.
Solvency.
119123
Section 5.16.
Collateral Documents
119123
Section 5.17.
Use of Proceeds
119124
Section 5.18.
Sanctions Laws and Regulations and Anti-Corruption Laws.
119124
Section 5.19.
Closing Date LCT Representations.
124
ARTICLE VI
AFFIRMATIVE COVENANTS
120124
Section 6.01.
Financial Statements
120125
Section 6.02.
Certificates; Other Information
121126
Section 6.03.
Notices
122127
Section 6.04.
Maintenance of Existence.
123127
Section 6.05.
Maintenance of Properties
123128
Section 6.06.
Maintenance of Insurance
123128
Section 6.07.
Compliance with Laws
124128
Section 6.08.
Books and Records
124128
Section 6.09.
Inspection Rights
124128
Section 6.10.
Covenant to Guarantee Obligations and Give Security
124129
Section 6.11.
Use of Proceeds
126131
Section 6.12.
Further Assurances and Post-Closing Covenants.
126131
Section 6.13.
Designation of Subsidiaries.
127131
Section 6.14.
Payment of Taxes
127132
Section 6.15.
Nature of Business
127132
Section 6.16.
Maintenance of Ratings
128132
ii
ARTICLE VII
NEGATIVE COVENANTS
128132
Section 7.01.
Indebtedness
128132
Section 7.02.
Liens
133139
Section 7.03.
Investments
133139
Section 7.04.
Fundamental Changes.
136142
Section 7.05.
Dispositions.
137143
Section 7.06.
Restricted Payments
139145
Section 7.07.
Transactions with Affiliates
141148
Section 7.08.
Prepayments, Etc., of Indebtedness.
142149
Section 7.09.
[Reserved].
143150
Section 7.10.
Subsidiary Distributions
143150
Section 7.11.
Financial Covenants[Reserved]
144151
Section 7.12.
Liability Management Transactions
151
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
145152
Section 8.01.
Events of Default.
145152
Section 8.02.
Remedies Upon Event of Default
147154
Section 8.03.
Exclusion of Immaterial Subsidiaries.
148155
Section 8.04.
Application of Funds
148155
Section 8.05.
Right to Cure.
155
ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
150157
Section 9.01.
Appointment and Authorization of Agents.
150157
Section 9.02.
Delegation of Duties
151157
Section 9.03.
Liability of Agents
151158
Section 9.04.
Reliance by Agents.
152158
Section 9.05.
Notice of Default
152159
Section 9.06.
Credit Decision; Disclosure of Information by Agents
153159
Section 9.07.
Indemnification of Agents
153160
Section 9.08.
Agents in their Individual Capacities
154160
Section 9.09.
Successor Agents
154161
Section 9.10.
Administrative Agent May File Proofs of Claim
155161
Section 9.11.
Collateral and Guaranty Matters
156163
Section 9.12.
Other Agents; Arrangers and Managers
157164
Section 9.13.
Appointment of Supplemental Administrative Agents.
158164
Section 9.14.
Withholding Tax
158165
Section 9.15.
Recovery of Erroneous Payments.
159166
iii
ARTICLE X
MISCELLANEOUS
160167
Section 10.01.
Amendments, Etc.
160167
Section 10.02.
Notices and Other Communications; Facsimile Copies.
163170
Section 10.03.
No Waiver; Cumulative Remedies
166172
Section 10.04.
Attorney Costs and Expenses
166172
Section 10.05.
Indemnification by the Borrowers
166173
Section 10.06.
Payments Set Aside
168174
Section 10.07.
Successors and Assigns.
168175
Section 10.08.
Confidentiality
175181
Section 10.09.
Setoff
176182
Section 10.10.
Counterparts
176183
Section 10.11.
Integration
176183
Section 10.12.
Survival of Representations and Warranties
177183
Section 10.13.
Severability
177183
Section 10.14.
GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS.
177183
Section 10.15.
WAIVER OF RIGHT TO TRIAL BY JURY
178184
Section 10.16.
Binding Effect.
178184
Section 10.17.
Judgment Currency
178185
Section 10.18.
Lender Action
179185
Section 10.19.
Know-Your-Customer, Etc.
179185
Section 10.20.
USA PATRIOT Act
179185
Section 10.21.
Closing Date Intercreditor Agreement.
Agreements
179185
Section 10.22.
Obligations Absolute
179187
Section 10.23.
No Advisory or Fiduciary Responsibility
180187
Section 10.24.
Electronic Execution of Assignments and Certain Other Documents
180188
Section 10.25.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
181188
Section 10.26.
Lender Representation
181189
Section 10.27.
Acknowledgement Regarding any Supported QFCs
181189
iv
SCHEDULES
1.01A
—
Certain Security Interests and Guarantees
1.01B
—
Unrestricted Subsidiaries[Reserved]
1.01C
—
Amendment No. 2 Effective Date Excluded Subsidiaries
1.01D
—
Amendment No. 2 Effective Date Guarantors
1.01E
—
Material Real Properties
2.01
—
Commitments
5.06
—
Litigation
5.11
—
Amendment No.2 Effective Date Subsidiaries and Other Equity Investments
6.12
—
Post-Closing Covenants
7.01(b)
7.02
7.03(g)
—
—
—
Amendment No. 2 Effective Date Surviving
Indebtedness
Amendment No. 2 Effective Date Existing Liens
Amendment No. 2 Effective Date Existing Investments
7.07
—
Amendment No. 2 Effective Date Transactions with Affiliates
10.02
—
Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
Form of
A
—
Committed Loan Notice
B
—
Term Note
C
—
Compliance Certificate
D
—
Assignment and Assumption
E
—
Guaranty[Reserved]
F
—
Second Lien Intercreditor Agreement[Reserved]
G
—
Security Agreement[Reserved]
H
—
United States Tax Compliance Certificates
I
—
Discounted Prepayment Option Notice
J
—
Lender Participation Notice
K
—
Discounted Voluntary Prepayment Notice
v
TERM LOAN CREDIT AGREEMENT
THIS TERM LOAN CREDIT AGREEMENT dated as of March 29, 2022
(as amended by Amendment No. 1 to Term Loan Credit Agreement, dated as of November 8, 2024 and Amendment No. 2 to Term
Loan Credit Agreement and Consent, dated as of June 15, 2026, this “Agreement”) is by and among
ACCENDRA HEALTH, INC. (f/k/a OWENS & MINOR, INC.), a Virginia corporation (the “Parent
Borrower”), OWENS & MINOR DISTRIBUTION, INC., a Virginia corporation (“Distribution”), OWENS & MINOR MEDICAL, INC., a Virginia corporation
(“Medical”)
, BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), Barista Acquisition II, LLC, a Virginia limited liability company (“Barista
II”), O&M HALYARD, INC., a Virginia corporation (“O&M
Halyard”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation
(“Byram”), APRIA, INC., a Delaware corporation (“Apria”; the Parent Borrower, Distribution, Medical, Barista I, Barista II, O&M Halyard, Byram, and Apria,
collectively the “Borrowers”), the
each lender from time to time party hereto (collectively, the “Lenders (as defined
herein” and individually, a “Lender”
) and JPMORGAN CHASE BANK, N.A., as administrative agent (or any of its designated branch offices or affiliates, in such capacity, the “Administrative Agent”) and as collateral
agent for the Secured Parties (in such capacity, the “Collateral Agent”).
RECITALS:
Pursuant to the Agreement and Plan of Merger, dated as of January 7, 2022 (as amended, supplemented, waived or modified from time to time
in accordance with the terms herein, the “Merger Agreement”), by and among the Parent Borrower, StoneOak Merger Sub Inc., a Delaware corporation (“Merger Sub”) and Apria, Merger Sub merged with and into Apria,
following which Apria and its Subsidiaries became a Wholly Owned Subsidiary of the Parent Borrower (the “Merger”).
The
Borrowers have requested that (i) the Initial Term A-1 Lenders make available to them the Initial Term A-1 Commitments in an initial aggregate principal amount of $500,000,000 and (ii) the Initial Term B-1 Lenders make available to them
the Initial Term B-1 Commitments in an initial aggregate principal amount of $600,000,000, in each case, for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.
Therefore, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01.
Defined TermsDefined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
““2014
Indenture””
means that certain Indenture, dated September 16, 2014, by and among the Parent Borrower, the guarantors party thereto and Regions Bank, (as successor to U.S. Bank National Association), as
trustee, as amended, restated, supplemented or otherwise modified from time to time.
““2014 Indenture
Notes””
means those certain Senior Notes issued pursuant to the 2014 Indenture.
““2021 Indenture”” means that certain Indenture, dated March 10, 2021, among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended, restated, supplemented or otherwise modified from time to
time.
““2021 Indenture Notes”” means those certain Senior Notes issued pursuant to the 2021 Indenture.
““2022
Indenture””
means that certain Indenture, dated as of the date hereofClosing Date, among the Parent Borrower, the guarantors named therein
and Regions Bank, as trustee, as amended, restated, supplemented or otherwise modified from time to time.
““2022 Indenture Notes”” means those certain Senior Notes issued pursuant to the 2022 Indenture.
“2026 First Lien Indenture” means that certain Indenture, dated as of the Amendment No. 2 Effective Date, among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended,
restated, supplemented or otherwise modified from time to time, relating to the 2026 First Lien Notes.
“2026 First Lien Notes” means those certain 9.000% Senior Secured First Lien Notes due 2032 issued from time to time
pursuant to the 2026 First Lien Indenture.
“2026 Second Lien Indenture” means that certain Indenture, dated as of the Amendment No. 2 Effective Date, among the Parent Borrower, the guarantors named therein and Regions Bank, as trustee, as amended,
restated, supplemented or otherwise modified from time to time, relating to the 2026 Second Lien Notes.
“2026 Second Lien Notes” means those certain 9.750% Senior Secured Second Lien Notes due 2033 issued from time to time
pursuant to the 2026 Second Lien Indenture.
“2026 Senior Secured Notes” means, collectively, the 2026 First Lien Notes and the 2026 Second Lien Notes.
“Accendra Executive Deferred Compensation Trust” means Accendra Health Inc. Executive Deferred Compensation Trust and
its successors and assigns.
“Accendra Health Foundation” means Accendra Health Foundation and its successors and assigns.
“Acceptable Discount” has the meaning specified in Section 2.05(d)(iii).
“Acceptable Intercreditor Agreement” means a customary intercreditor agreement that is either (A) substantially in the
form of (x) in the case of Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that are pari passu with the Liens securing the Obligations, the Closing DatePari Passu
First Lien Intercreditor Agreement or (y) in the case of Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that are junior to the Liens securing the
Obligations, Exhibit
Fthe Junior Lien Intercreditor Agreement or
(B) with changes to Exhibit F or the Closing
Datethe Junior Lien Intercreditor Agreement or the Pari Passu First Lien Intercreditor Agreement, as applicable, as reasonably agreed between the Administrative Agent and the
BorrowerBorrowers
which have not been objected to by the applicable Required Lenders within five (5) Business Days of having been posted (which shall be deemed acceptable to the Administrative Agent and the
applicable Required Lenders).
2
“Acceptance Date” has the meaning specified in
Section 2.05(d)(ii).
“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, 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
specified in the definition of the term “Consolidated EBITDA.”
“Acquired Indebtedness” means with respect to any Person (a) Indebtedness of any other Person or any of its Subsidiaries existing at the time such other Person becomes a Restricted Subsidiary or merges or
amalgamates with or into or consolidated or otherwise combines with the Parent Borrower or any of its Restricted Subsidiaries and (b) Indebtedness secured by a Lien encumbering any asset acquired by such Person. Acquired Indebtedness shall be
deemed to have been incurred, with respect to clause (a) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary or on the date of the relevant merger, amalgamation, consolidation, acquisition or other
combination.
“Additional Lender” has the meaning
specified in Section 2.14(d).
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to the
Daily Simple SOFR plus 0.10%; provided that if the Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means for any Interest Period, an interest rate per annum equal to the Term SOFR Rate for such
Interest Period plus 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” means, subject to Section 9.13, JPMorgan Chase Bank, N.A. (or any of its designated
branch offices or affiliates) in its capacity as administrative agent under the Loan Documents, or any successor administrative agent appointed in accordance with Section 9.09.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, 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 Parent Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial
Institution.
3
“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 Debt Fund” means an Affiliated Lender that is primarily engaged in, or advises funds or other investment
vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of business and with respect to which the Parent Borrower does not, directly or
indirectly, possess the power to direct or cause the direction of the investment policies of such entity.
“Affiliated
Lender” means the Parent Borrower and any Affiliate of the Parent Borrower (including Affiliated Debt Funds).
“After
Year-End Transaction” has the meaning specified in Section 2.05(b)(i).
“Agent Parties” has the meaning specified in Section 10.02(c).
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Agents” means, collectively, the
Administrative Agent, the Collateral Agent, and the Supplemental Administrative Agents (if any).
“Agent Parties” has the meaning
specified in Section 10.02(c).
“Agreement” has the meaning specified in the introductory paragraph
hereof.
“Agreement Currency” has the meaning specified in Section 10.17.
“AHYDO Payment” means any payment with respect to any obligations of the Borrowers or any Restricted Subsidiary, including SubordinatedRestricted
Debt obligations, in each case to avoid the application of Code Section 163(e)(5) thereto.
“All-In Yield” means, as to any Indebtedness, the All-In Yield on such Indebtedness in the reasonable determination of the
Administrative Agent (in consultation with the Parent Borrower) and consistent with generally accepted financial practices, taking into account the applicable interest rate margins and any amendments to the interest margin on the applicable
Indebtedness that became effective subsequent to the Closing Date but prior to the applicable date of determination, any interest rate floors, or similar devices and all fees, including upfront or similar fees or original issue discount (amortized
over four years) payable generally to Lenders or other institutions providing such Indebtedness, but excluding (x) any customary arrangement, underwriting, unused line, structuring, ticking, amendment, success and commitment fees and other
similar fees (regardless of whether any such fees are paid to or shared in whole or in part with any lenders), (y) any fees customarily not paid to the Lenders providing Indebtedness of such type and (z) if applicable, consent fees for an
amendment paid generally to consenting lenders.
“Amendment No. 2” means that certain Amendment No. 2 to Term Loan Credit Agreement and Consent, dated as of
June 15, 2026, by and among the Parent Borrower, the other Borrowers, the Guarantors party thereto, the Lenders party thereto and the Administrative Agent.
4
“Amendment No. 2 Effective Date” has the meaning assigned to such term in Amendment No. 2.
“Amendment No. 2 Transactions” means, collectively, as applicable, (a) the issuance of the 2026 First Lien
Notes and the use of proceeds therefrom, (b) the issuance of the 2026 Second Lien Notes, (c) the Exchange Offers (as defined in the 2026 First Lien Indenture and the 2026 Second Lien Indenture), (d) the amendment to this Agreement on
the Amendment No. 2 Effective Date, (e) the amendment of or entry into, as applicable, of the First Lien Revolving Credit Facility Agreement on or about the Amendment No. 2 Effective Date, (f) the repayment of existing
indebtedness on or around the Amendment No. 2 Effective Date, (g) the payment of fees, expenses and premiums incurred in connection with the foregoing and (h) other related transactions and use of proceeds, in each case, including as
described in the Exchange Offering Memorandum.
“Applicable
Discount” has the meaning assigned to such term in Section 2.05(d)(iii).
“Applicable Lending
Office” means for any Lender, such Lender’s office, branch or affiliate designated for Adjusted Term SOFR Rate Loans or Base Rate Loans, as applicable, as notified to the Administrative Agent, any of which offices may be changed by
such Lender.
“Applicable Percentage” means, at any time (a) with respect to any Lender with a Term Commitment of
any Class, the percentage equal to a fraction the numerator of which is the amount of such Lender’s Term Commitment of such Class at such time and the denominator of which is the aggregate amount of all Term Commitments of such Class of all
Lenders and (b) with respect to the Loans of any Class, a percentage equal to a fraction the numerator of which is such Lender’s Outstanding Amount of the Loans of such Class and the denominator of which is the aggregate Outstanding
Amount of all Loans of such Class.
“Applicable Rate” means (i) with respect to the Term B-1 Facility,
(x) 3.75% per annum, in the case of Term Benchmark Loans, and (y) 2.75% per annum, in the case of Base Rate Loans, and (ii) with respect to the Term A-1 Facility, the following rates per annum based on the Debt Ratings or
the Total Leverage Ratio (expressed as a multiple, such that e.g., “1.25x” means a Total Leverage Ratio of 1.25:1.00), in each case, as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(a), it being understood that the Applicable Rate shall be determined by either the Debt Ratings or the Total Leverage Ratio, whichever shall result in lower pricing to the Borrowers, it being understood that the Applicable
Rate for (x) Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin” and (y) Term Benchmark Loans shall be the percentage set forth under the column “Term Benchmark Margin”:
Level
Ratings
Total Leverage Ratio
Term Benchmark
Margin
Base Rate
Margin
I
Baa3 /BBB-
or better
≤ 0.50x
1.75
%
0.75
%
II
Ba1 /BB+
> 0.50x but ≤ 1.25x
2.00
%
1.00
%
III
Ba2 / BB
> 1.25x but ≤ 2.00x
2.25
%
1.25
%
IV
Ba3 /BB-
> 2.00x but ≤ 2.75x
2.50
%
1.50
%
V
B1 / B+
> 2.75x but ≤ 3.75x
2.75
%
1.75
%
VI
B2 / B
or worse
> 3.75x
3.00
%
2.00
%
5
Any increase or decrease in the Applicable Rate with respect to the Term A-1 Facility 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 if a Compliance Certificate is not delivered when due in accordance with
Section 6.02(a) (after giving effect to any applicable grace period in Article VIII), then, upon the request of the Required Term A-1 Lenders, Level VI shall apply, in each case as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. Notwithstanding the foregoing, the Applicable
Rate with respect to the Term A-1 Facility in effect from the Closing Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to Section 6.02(a) for the fiscal
quarter ending after the Closing Date shall be determined based upon Level IV. At such times as the Applicable Rate with respect to the Term A-1 Facility is determined by the Debt Ratings, the Applicable Rate with respect to the Term A-1 Facility
shall be determined in accordance with the above pricing grid based on the Parent Borrower’s status as determined from the better of its then current Moody’s Rating, S&P Rating or Fitch Rating as reflected in the Compliance
Certificate delivered pursuant to Section 6.02(a). If at any time (A) the Parent Borrower has only two Debt Ratings and there is a split rating, the Applicable Rate shall be based upon the Level indicated by the higher of the two
ratings unless there is a two or more level difference in the levels indicated by each of the two available ratings, in which case the Level that is one level below the higher rating shall apply, or (B) the Parent Borrower has three Debt
Ratings and there is a split rating such that (1) all three ratings fall in different Levels, the Applicable Rate with respect to the Term A-1 Facility shall be based upon the Level indicated by the rating that is neither the highest nor the
lowest of the three ratings or (2) two of the three ratings fall in one Level (the “Majority Level”) and the third rating falls in a different Level, the Applicable Rate with respect to the Term A-1 Facility shall be based
upon the Level indicated by the Majority Level. Should the Parent Borrower not have any Debt Rating, the corporate credit or issuer rating of the Parent Borrower will be used in lieu thereof, or if no such rating is available, then the Total
Leverage Ratio shall be used to determine the Applicable Rate with respect to the Term A-1 Facility.
Notwithstanding anything to the
contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Total Leverage Ratio set forth in any Compliance Certificate delivered to the Administrative Agent is inaccurate for any reason and
the result thereof is that the Lenders received interest or fees for any period based on an Applicable Rate with respect to the Term A-1 Facility that is less than that which would have been applicable had the Total Leverage Ratio been accurately
determined, then, for all purposes of this Agreement, the “Applicable Rate” with respect to the Term A-1 Facility for any day occurring within the period covered by such Compliance Certificate shall retroactively be deemed to be the
relevant percentage as based upon the accurately determined Total Leverage Ratio for such period, and any shortfall in the interest or fees theretofore paid by the Borrowers for the relevant period pursuant to Sections 2.09 and 2.10 as
a result of the miscalculation of the Total Leverage Ratio shall be deemed to be (and shall be) due and payable to the applicable Lenders of record at the time of payment under the relevant provisions of Sections 2.09 or 2.10, as
applicable, at the time the interest or fees for such period were required to be paid pursuant to said Section (and shall remain due and payable until paid in full, together with all amounts owing under Section 2.09 (other than Section 2.09(b)), in accordance with the terms of this Agreement); provided that, notwithstanding the foregoing, so long as an Event of Default described in Section 8.01(f) has not occurred with respect to any
Borrower, such shortfall shall be due and payable five (5) Business Days following the determination described above. Notwithstanding the foregoing, the Applicable Rate in respect of any Class of Extended Term Loans made shall be the applicable
rates per annum set forth in the relevant Extension Offer.
6
“Appropriate Lender” means, at any time, with respect to Loans of any
Class, the Lenders of such Class.
“Approved Foreign Bank” has the meaning specified in the definition of “Cash
Equivalents.”
“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.
“Apria” has the meaning specified in the introductory paragraph to this Agreement.
“Asset Percentage” has the meaning specified in Section 2.05(b)(ii)(A).
“Assignees” has the meaning specified in Section 10.07(b).
“Assignment and Assumption” means (a) an Assignment and Assumption substantially in the form of Exhibit D, and
(b) in the case of any assignment of Term Loans in connection with a Permitted Debt Exchange conducted in accordance with Section 2.17, such form of assignment (if any) as may have been requested by the Administrative Agent in
accordance with Section 2.17(a)(viii) or, in each case, any other form (including electronic documentation generated by an electronic platform) approved by the Administrative Agent.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements 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.
“Audited Parent Borrower Financial Statements” means (i) the audited consolidated balance sheet of Parent Borrower as
of December 31, 2021 and (ii) the related audited consolidated statements of income, cash flows and stockholders’ equity of Parent Borrower for the fiscal year ended December 31, 2021.
“Available Amount” means, at any time (the “Available Amount Reference Time”), an amount (which shall
not be less than zero) equal to the sum of:
(a)
$202,000,000[reserved]
; plus
(b)
50% of Consolidated Net Income (which shall not be less than zero in any period) for the period from the first
day of the fiscal quarter of the Parent Borrower during which the ClosingAmendment No. 2 Effective Date
occurred to and including the last day of the most recently ended fiscal quarter of the Parent Borrower prior to the Available Amount Reference Time; plus
(c)
the amount of any capital contributions (including mergers or consolidations that have a similar effect) or Net
Cash Proceeds from any Permitted Equity Issuance (or issuance of debt securities by the Parent Borrower or any of its Restricted Subsidiaries that have been converted into or exchanged for Qualified Equity Interests of the Parent Borrower or any
direct or indirect parent thereof), in each case during the period from the
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Business Day immediately following the ClosingAmendment No. 2
Effective Date through and including the Available Amount Reference Time (other than any Cure Amount, RCF Cure Amount, any Excluded Contribution Amount, or any other capital contributions
(including mergers or consolidations that have a similar effect) or equity or debt issuances to the extent utilized in connection with other transactions permitted pursuant to Section 7.01, 7.03, 7.06 or 7.08)
received or made to the Parent Borrower (or any direct or indirect parent thereof and contributed by such parent to the Parent Borrower) during the period from and including the Business Day immediately following the
ClosingAmendment No. 2 Effective Date through and including the Available Amount Reference Time; plus
(d)
the aggregate amount of Retained Declined Proceeds during the period from the Business Day immediately
following the ClosingAmendment No. 2 Effective Date through and including the Available Amount Reference
Time; plus
(e)
to the extent not (i) already included in the calculation of Consolidated Net Income of the Parent
Borrower and the Restricted Subsidiaries or (ii) already reflected as a return of capital or deemed reduction in the amount of such Investment pursuant to clause (g) below or any other provision of Section 7.03, the
aggregate amount of all cash dividends and other cash distributions received by the Parent Borrower or any Restricted Subsidiary from any JV Entity or Unrestricted Subsidiaries during the period from the Business Day immediately following the ClosingAmendment No. 2 Effective Date through and including the Available Amount Reference Time; plus
(f)
to the extent not (i) already included in the calculation of Consolidated Net Income of the Parent
Borrower and the Restricted Subsidiaries or (ii) already reflected as a return of capital or deemed reduction in the amount of such Investment pursuant to clause (g) below or any other provision of Section 7.03, the
aggregate amount of all Net Cash Proceeds received by the Parent Borrower or any Restricted Subsidiary in connection with the sale, transfer or other disposition of its ownership interest in any JV Entity or Unrestricted Subsidiary during the period
from the Business Day immediately following the ClosingAmendment No. 2 Effective Date through and including
the Available Amount Reference Time; minus
(g)
the aggregate amount of (i) any Investments made pursuant to Section 7.03(n) (net of any
return of capital in respect of such Investment or deemed reduction in the amount of such Investment, including, without limitation, upon the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary or the sale, transfer, lease or
other disposition of any such Investment), (ii) any Restricted Payment made pursuant to Section 7.06(k) and (iii) any payments made pursuant to Section 7.08(a)(iii)(B), in each case, during the period commencing on
the ClosingAmendment No. 2 Effective Date through and including the Available Amount Reference Time (and, for
purposes of this clause (g), without taking account of the intended usage of the Available Amount at such Available Amount Reference Time).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any
tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term
rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the
definition of “Interest Period” pursuant to clause (f) of Section 3.03.
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“Bail-In Action” means the exercise of any Write-Down and Conversion
Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In
Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement
for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,
regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency
proceedings).
“Bankruptcy Code” means Title 11 of the United State Code, as amended, or any similar federal or state
law for the relief of debtors.
“Bankruptcy Event” means, with respect to any Person, such Person or its parent entity
becomes (other than via an Undisclosed Administration) the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with
the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such
proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof;
provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit
such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person or its parent entity.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day,
(b) the NYFRB Rate in effect on such day plus 1⁄2 of 1%, and (c) the Adjusted Term SOFR Rate for a one-month Interest Period as published two
(2) U.S. Government Securities Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that, for the purpose of this definition, the Adjusted Term SOFR Rate for any
day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference
Rate methodology). Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted
Term SOFR Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to
Section 3.03), then the Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined
pursuant to the foregoing would be less than 1.50%, such rate shall be deemed to be 1.50% for purposes of this Agreement.
“Base
Rate Loan” means a Loan for which the rate of interest is based on the Base Rate.
9
“Benchmark” means, initially, with respect to any Term Benchmark Loan,
the Term SOFR Rate; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable
Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 3.03.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be
determined by the Administrative Agent (in consultation with the Parent Borrower) for the applicable Benchmark Replacement Date:
(1) the Adjusted Daily Simple SOFR;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Parent
Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by
the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the
United States and (b) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause
(1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted
Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive
or negative value or zero) that has been selected by the Administrative Agent and the Parent Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any
evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for
dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with
respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition
of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or
continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (after consultation with the Parent Borrower) may be
appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent
10
with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that
no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent in consultation with the Parent Borrower decides is reasonably necessary in connection with the
administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to
any Benchmark, the earlier to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause
(1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator
of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such
Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative;
provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof)
continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date
occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current
Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition
Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in
the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with
jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the
administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
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(3) a public statement or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be,
representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to
any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time
that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any
Loan Document in accordance with Section 3.03 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
Section 3.03.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or
control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. §
1010.230.
“BHC Act Affiliate” has the meaning specified in Section 10.27.
“Bilateral Letter of Credit” has the meaning specified in the Existing OMI CreditFirst
Lien Revolving Credit Facility Agreement.
“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 Materials” has the meaning specified in Section 6.02.
“Borrowers” has the meaning specified in the introductory paragraph hereof.
“Borrowing” means Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Term
Benchmark Loans, as to which a single Interest Period is in effect.
“Business Day” means, any day (other than a
Saturday or a Sunday) on which banks are open for business in New York City.
“Capital Expenditures” means, for any
period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities) by the Parent Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to
be included as additions during such period to property, plant or equipment in a consolidated statement of cash flows and reflected in the consolidated balance sheet of the Parent Borrower and its Restricted Subsidiaries and (b) Capitalized
Lease Obligations incurred by the Parent Borrower and its Restricted Subsidiaries during such period.
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“Capital Stock” means (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership interests and (e) 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 Lease Obligation” means, at the time any determination thereof is to be
made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP;
provided that all obligations of the Parent Borrower and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on December 15, 2018 (whether or not such
operating lease was in effect on December 15, 2018) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP following such date that would
otherwise require such obligation to be recharacterized as a Capitalized Lease.
“Capitalized Leases” means all leases
that 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 in
accordance with GAAP; provided that all obligations of the Parent Borrower and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on December 15, 2018
(whether or not such operating lease was in effect on December 15, 2018) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease) for purposes of this Agreement regardless of any change in GAAP following such
date that would otherwise require such obligation to be recharacterized as a Capitalized Lease.
“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 Borrower operating for the purpose of
(a) insuring the businesses, operations or properties owned or operated by any parent entity, the Parent Borrower or any of its Subsidiaries, including their future, present or former employee, director, officer, manager, contractor, consultant
or advisor (or their respective Controlled Investment Affiliates or Immediate Family Members), 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 shall be considered “activities or business incidental thereto”) or (ii) any Subsidiary of any such insurance subsidiary operating for
the same purpose described in the foregoing clause (i).
13
“Cash Equivalents” means any of the following types of Investments, to
the extent owned by the Parent Borrower or any Restricted Subsidiary:
(a)
Dollars;
(b)
securities issued or directly and fully and unconditionally guaranteed or insured by the United States
government or any agency or instrumentality of the foregoing 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;
(c)
certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from
the date of acquisition, with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $100,000,000 (or the Dollar Equivalent as of the date of determination) in the case of
non-U.S. banks;
(d)
repurchase obligations for underlying securities of the types described in clauses (b),
(c) and (g) of this definition entered into with any financial institution meeting the qualifications specified in clause (c) above;
(e)
commercial paper rated at least “P-1” by Moody’s or at least “A-1” by S&P,
and in each case maturing within 24 months after the date of creation thereof and Indebtedness or preferred stock issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s, with
maturities of 24 months or less from the date of acquisition;
(f)
marketable short-term money market and similar securities 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 selected
by the Parent Borrower) and in each case maturing within 24 months after the date of creation or acquisition thereof;
(g)
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 Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
(h)
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 Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
(i)
Investments with average maturities of 12 months or less from the date of acquisition in money market funds
rated within the top three ratings category by S&P or Moody’s;
(j)
with respect to any Foreign Subsidiary: (i) obligations of the national government of the country in which
such Foreign Subsidiary maintains its chief executive office and principal place of business provided such country is a member of the Organization for Economic Cooperation and Development, in each case maturing within one year after the date of
investment therein, (ii) certificates of deposit of, bankers acceptances of, or time deposits with, any commercial bank which is organized and existing under the laws of the country in which such Foreign Subsidiary maintains its chief executive
office and principal place of business provided such country is a member of the
14
Organization for Economic Cooperation and Development, and whose short-term commercial paper rating from S&P is at least “A-1” or the equivalent thereof or from Moody’s is
at least “P-1” or the equivalent thereof (any such bank being an “Approved Foreign Bank”), and in each case with maturities of not more than 270 days from the date of acquisition and (iii) the equivalent of demand
deposit accounts which are maintained with an Approved Foreign Bank;
(k)
Cash Equivalents of the types described in clauses (a) through (j) above denominated in
Dollars, Euro, Brazilian Real, Sterling, Australian Dollars, Canadian Dollars, Chinese Yuan, Danish Kroner, Hong Kong Dollars, Hungarian Forint, Indian Rupee, Japanese Yen, New Zealand Dollars, Norwegian Krone, Singapore Dollars, South African Rand,
Swedish Kroner, Swiss Francs, Turkish Lira, United Arab Emirates Dirham or any other currency (other than Dollars) that is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars or,
solely to the extent held in the ordinary course of business and not for speculative purposes, any currency in which the Parent Borrower and/or its Restricted Subsidiaries regularly conducts business; and
(l)
investment funds investing at least 90% of their assets in Cash Equivalents of the types described in
clauses (a) through (k) above.
“Cash Management Bank” means any financial
institution providing treasury, depository, credit or debit card, purchasing card, and/or cash management services or automated clearing house transactions to the Parent Borrower or any Restricted Subsidiary or conducting any automated clearing
house transfers of funds; provided, that, if such financial institution is not an Agent, a Lender or an Affiliate of a Lender, such financial institution executes and delivers to the Administrative Agent and the Parent Borrower a letter
agreement in form and substance reasonably acceptable to the Administrative Agent and the Parent Borrower pursuant to which such financial institution (a) appoints the Administrative Agent as its agent under the applicable Loan Documents and
(b) agrees to be bound by the provisions of Sections 4.01, 4.02, 5.13, 5.15, 5.16 and 5.17 of the Security Agreement, in each case, as if it were a Lender.
“Cash Management Obligations” means obligations owed by the Parent Borrower or any Restricted Subsidiary to any Cash
Management Bank in respect of any overdraft and related liabilities arising from treasury, depository, credit or debit card, purchasing card, or cash management services or any automated clearing house transfers of funds; provided that, in no
event shall any such obligations constitute Cash Management Obligations hereunder to the extent that such obligations constitute “Cash Management Obligations” under and as defined in the Existing OMI CreditFirst
Lien Revolving Credit Facility Agreement.
“Casualty Event”
means any event that gives rise to the receipt by the Parent Borrower 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 any Subsidiary that is a
“controlled foreign corporation” within the meaning of Section 957 of the Code.
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“Change in Law” means the occurrence, after the date of this Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank
for International settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a
“Change in Law,” regardless of the date enacted, adopted or issued.
“Change of Control” means any of the
following events: (a) any Person or two or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of Voting Stock of the Parent Borrower (or other securities convertible into such Voting Stock)
representing 35% or more of the combined voting power of all Voting Stock of the Parent Borrower, (b) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of, control over Voting Stock of the Parent Borrower (or other securities convertible into such securities) representing 35% or more of the combined voting power of all
Voting Stock of the Parent Borrower, or (c) the Parent Borrower shall fail to own (directly or indirectly) 100% of the Capital Stock of each Borrower. As used herein, “beneficial ownership” shall have the meaning provided in Rule
13d-3 of the Securities and Exchange Commission under the Securities and Exchange Act of 1934.
“City Code” has the
meaning specified in Section 1.09(a).
“Class” (a) when used with respect to Lenders, refers to
whether such Lenders are Term A-1 Term Lenders or Term B-1 Term Lenders, (b) when used with respect to Commitments, refers to whether such Commitments are Initial Term A-1 Commitments, Initial Term B-1 Commitments, Commitments in respect of any
Incremental Term Loans or Commitments in respect of any Extended Term Loans and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Term A-1 Term Loans, Term B-1 Term
Loans, Extended Term Loans or Incremental Term Loans. Incremental Term Loans and Extended Term Loans that have different terms and conditions (together with the Commitments in respect thereof) shall be construed to be in different Classes.
“Closing Date” means the date all the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 10.01. The Closing Date occurred on March 29, 2022.
“Closing Date Intercreditor Agreement” means that certain First Lien Pari Passu Intercreditor Agreement, dated as of the
date hereof, among the Collateral Agent, Bank of America, N.A., as collateral agent under the Existing OMI Credit Agreement, and the representatives for purposes thereof for holders of one or more other classes of Indebtedness, and acknowledged and
agreed by the Loan Parties, as amended, restated, supplemented or otherwise modified from time to time in accordance with the requirements thereof and of this Agreement, and which shall also include any replacement intercreditor agreement entered
into in accordance with the terms hereof (so long as such replacement intercreditor agreement would qualify as an Acceptable Intercreditor Agreement for Indebtedness that is permitted hereunder to be secured by Liens on the Collateral that are
pari passu with the Liens securing the Obligations).
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the
forward-looking term SOFR (or a successor administrator).
16
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Collateral” means all the “Collateral” as defined in the Collateral Documents and all other property of
whatever kind and nature pledged or charged as collateral under any Collateral Document, and shall include the Mortgaged Properties.
“Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as
collateral agent under any of the Loan Documents, or any successor collateral agent appointed in accordance with Section 9.09.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a)
the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date
pursuant to Section 4.01(a)(iii), or thereafter pursuant to Section 6.10 or Section 6.12, duly executed by each Loan Party that is a party thereto;
(b)
all Obligations shall have been unconditionally guaranteed (the “Guarantees”), jointly and
severally, by each Restricted Subsidiary that is a Material Subsidiary (other than any Excluded Subsidiary) including as of the
ClosingAmendment No. 2 Effective Date those that are listed on Schedule 1.01D hereto (each, a
“Guarantor”);
(c)
the Obligations and the Guarantees shall have been secured pursuant to the Security Agreements or other
applicable Collateral Documents by a first-priority security interest in (i) all the Equity Interests of the Borrowers (other than the Parent Borrower) and
(ii) all Equity Interests (other than Excluded Equity) held directly by the Borrowers or any Subsidiary Guarantor in any Wholly Owned Subsidiary, in each case subject to (x) those Liens permitted under clauses (q), (aa) (solely with
respect to modifications, replacements, renewals or extensions of Liens permitted by clauses (q) and (dd) of the definition of “Permitted Liens”) and (dd) of the definition of “Permitted Liens” and
(y) any nonconsensual Lien that is permitted under the definition of “Permitted Liens” and the Administrative Agent shall have 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)
except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the
Guarantees shall have been secured by a perfected security interest (other than in the case of mortgages, to the extent such security interest may be perfected by delivering certificated securities and instruments, filing personal property financing
statements or intellectual property security agreements, or making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office) in, and mortgages on,
substantially all tangible and intangible assets of Parent Borrower, the other Borrowers, and each other Guarantor (including, without limitation, accounts receivable, inventory, equipment, investment property, United States IP
rights, intercompany receivables, other general intangibles (including contract rights), owned (but not leased) real property and proceeds of the foregoing), in each case, with the priority required by
the Collateral Documents and all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, required by the Collateral Documents, requirements of Law and reasonably requested by the Collateral Agent
to be filed,
17
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 and the other provisions of the term “Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording; provided that security interests in real property shall be limited to the Mortgaged Properties;
(e)
none of the Collateral shall be subject to any Liens other than Permitted Liens;
(f)
the Collateral Agent shall have received from the Borrowers (i) counterparts
of a Mortgage with respect to each Material Real Property required to be delivered pursuant to Section 6.10, and/or Section 6.12, as applicable, duly executed, acknowledged and delivered by the record owner of such property and in a form suitable for recording in the applicable
jurisdiction, (ii) a title insurance policy for such Mortgaged Property (or marked-up title insurance commitment having the effect of a title insurance policy) (the “Mortgage
Policies”) in an amount reasonably acceptable to the Administrative Agent, insuring the Lien of each such Mortgage as a valid first priority Lien on the property described therein, free of any
other Liens except Permitted Liens, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request and to the extent available in each applicable jurisdiction, (iii) a Survey with respect to each
Mortgaged Property; provided, however, that a Survey shall not be required to the extent that (A) an existing survey together with an “affidavit of no change” satisfactory to
the Title Company is delivered to the Collateral Agent and the Title Company and (B) the Title Company removes the standard survey exception and provides reasonable and customary survey-related endorsements and other coverages in the applicable
Mortgage Policy, (iv) an opinion of local counsel to the Loan Parties in the state in which the Mortgaged Property is located, with respect to the enforceability and perfection of such Mortgage and any related fixture filings, in form and
substance reasonably satisfactory to the Administrative Agent, (v) a completed “Life-of-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 by the applicable Loan Party relating thereto), (vi) if applicable, a copy of, or a certificate as to coverage under, and a declaration page relating to, the
flood insurance policies required by Section 6.06 hereof, each of which (A) shall be endorsed or otherwise amended to name the Collateral Agent
as mortgagee and loss payee, (B) shall (1) identify the addresses of each property located in a special flood hazard area, (2) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating
thereto and (3) be otherwise in form and substance reasonably satisfactory to the Collateral Agent, and (vii) such existing abstracts, existing appraisals and other existing documents as the Collateral Agent may reasonably request with
respect to any such Mortgaged Property; and
(f)
[reserved]; and
(g)
in the event any Guarantor is added that is organized in a jurisdiction other than the U.S., such Loan Party
shall grant a perfected lien on substantially all of its assets (other than Excluded Property) pursuant to arrangements reasonably agreed between the Administrative Agent and the Parent Borrower subject to customary limitations in such jurisdiction
to be reasonably agreed to between the Administrative Agent and the Parent Borrower.
18
The foregoing definition shall not require the creation or perfection of pledges of or
security interests in, or the obtaining of the Mortgage Policies or Surveys with respect to, particular
assets if and for so long as the Administrative Agent and the Parent Borrower agree in writing that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be
obtained by the Lenders therefrom, or the obtaining of mortgage policies, surveys or title insurance with
respect to, any owned or leased real property.
The Administrative Agent may
grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the
Parent Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents; provided that any extensions of time granted
by the
OMIFirst Lien
Revolving Credit Facility Agreement Administrative Agent pursuant to the Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement shall be deemed to have been granted by the Administrative Agent pursuant to this Agreement.
Notwithstanding the
foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(A) Liens required to be
granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the
Administrative Agent and the Parent Borrower;
(B) the Collateral and Guarantee Requirement shall not apply to any Excluded Property;
(C) no deposit account control agreement, securities account control agreement or other control agreements or control arrangements shall be
required with respect to any deposit account, securities account or other asset specifically requiring perfection through control agreements;
(D) other than as provided in clause (g) above, no actions in any jurisdiction other than the U.S. or that are necessary to comply
with the Laws of any jurisdiction other than the U.S. shall be required in order to create any security interests in assets located, titled, registered or filed outside of the U.S. or to perfect such security interests (it being understood that
other than as provided in clause (g) above, there shall be no security agreements, pledge agreements, or share charge (or mortgage) agreements governed under the Laws of any jurisdiction other than the U.S.);
(E) general statutory limitations, financial assistance, corporate benefit, capital maintenance rules, fraudulent preference, “thin
capitalization” rules, retention of title claims and similar principle may limit the ability of a Foreign Subsidiary to provide a Guarantee or Collateral or may require that the Guarantee or Collateral be limited by an amount or otherwise, in
each case as reasonably determined by the Parent Borrower in consultation with the Administrative Agent; and
(F) no stock certificates of Immaterial Subsidiaries shall be required to be delivered to the Collateral Agent.; and
19
(G) no
Mortgages shall be required to be delivered in respect of any owned or leased real property.
“Collateral Documents” means, collectively, the Security Agreement, the Mortgages, each of the mortgages, collateral assignments, Security Agreement Supplements, security agreements,
pledge agreements or other similar agreements delivered to the Collateral Agent and the Lenders pursuant to Section 4.01(a)(iii), Section 6.10 or Section 6.12, the Guaranty and each of the other agreements,
instruments or documents that creates or purports to create a Lien or Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties.
“Commitment” means a Term Commitment, an Incremental Term Commitment, a Refinancing Term Commitment or any combination
thereof, as the context may require.
“Committed Loan Notice” means a notice of (a) a Term Borrowing, (b) a
conversion of Loans from one Type to the other or (c) a continuation of Term Benchmark Loans pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A (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 Parent Borrower.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time,
and any successor statute.
“Communications” has the meaning set forth in Section 10.02(g).
“Compensation Period” has the meaning specified in Section 2.12(c)(ii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“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 amortization or write-off of (i) intangible assets and non-cash organization costs, (ii) deferred financing and debt issuance fees, costs and expenses,
(iii) capitalized expenditures (including Capitalized Software Expenditures), customer acquisition costs and incentive payments, media development costs, conversion costs and contract acquisition costs, the amortization of original issue
discount resulting from the issuance of Indebtedness at less than par and amortization of favorable or unfavorable lease assets or liabilities and (iv) capitalized fees related to any Qualified Securitization Transactions, of such Person and
its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP and any write down of assets or asset value carried on the balance sheet.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such
period:
(1) increased (without duplication) by:
(a)
Fixed Charges of such Person for such period (including (w) non-cash rent expense, (x) net payments
and losses or any obligations on any Hedging Obligations or other derivative instruments, (y) bank, letter of credit and other financing fees and (z) costs of surety bonds in connection with financing activities, plus amounts excluded from
the definition of “Consolidated Interest Expense” and any non-cash interest expense), to the extent deducted (and not added back) in computing Consolidated Net Income; plus
20
(b)
(x) provision for Taxes based on income, profits, revenue or capital, including federal, foreign, state,
provincial, territorial, local, unitary, excise, property, franchise, value added and similar Taxes (such as, but not limited to, Delaware franchise tax, 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, additions to Tax and interest related to such Taxes or arising from Tax examinations) and similar Taxes of
such Person paid or accrued during such period (including in respect of repatriated funds), (y) any distributions made to an Ultimate Parent Entity with respect to the foregoing and (z) the net tax expense associated with any adjustments
made pursuant to the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(c)
Consolidated Depreciation and Amortization Expense of such Person for such period to the extent deducted (and
not added back) in computing Consolidated Net Income; plus
(d)
any fees, costs, expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to
any actual, proposed or contemplated Equity Offering (including any expense relating to enhanced accounting functions), Investment, Restricted Payment, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be
incurred by this Agreement (including a refinancing thereof) (whether or not successful and including any such transaction consummated prior to the Closing Date), including (i) such fees, expenses or charges (including rating agency fees,
consulting fees and other related expenses and/or letter of credit or similar fees) related to the offering or incurrence of, or ongoing administration of this Agreement, the Senior Notes, the Existing OMI
Credit2026 Senior Secured Notes, the First Lien Revolving Credit Facility Agreement, any other credit facilities, any fees incurred in
connection with a Qualified Securitization Transaction, the Transactions and the
Amendment No. 2 Transactions, including Transaction Expenses, and (ii) any amendment, waiver or other modification of this Agreement, the Senior
Notes, the Existing OMI Credit2026 Senior Secured Notes, the First Lien Revolving Credit Facility Agreement, any
agreement entered into with respect to a Qualified Securitization Transaction, any other credit facilities, any fees incurred in connection with a Qualified Securitization Transaction, any other Indebtedness or any Equity Offering, in each case,
whether or not consummated, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
21
(e)
(i) the amount of any restructuring charge, accrual, reserve (and adjustments to existing reserves) or expense,
integration cost, inventory optimization programs or other business optimization expense or cost (including charges directly related to the implementation of cost-savings initiatives and tax restructurings) that is deducted (and not added back) in
such period in computing Consolidated Net Income, including any costs incurred in connection with acquisitions or divestitures after the Closing Date, any severance, retention, signing bonuses, relocation, recruiting and other employee related
costs, costs in respect of strategic initiatives and curtailments or modifications to pension and post-retirement employment benefit plans (including any settlement of pension liabilities), costs related to entry into new markets (including unused
warehouse space costs) and new product introductions (including labor costs and scrap costs), systems development and establishment costs, operational and reporting systems, technology initiatives, contract termination costs, future lease
commitments and costs related to the opening and closure and/or consolidation of facilities (including severance, rent termination, moving and legal costs) and to exiting lines of business and consulting fees incurred with any of the foregoing and
(ii) fees, costs and expenses associated with acquisition related litigation and settlement thereof; plus
(f)
any other non-cash charges, write-downs, expenses, losses or items reducing Consolidated Net Income for such
period including (i) non-cash losses on the sale of assets and any write-offs or write-downs, deferred revenue or impairment charges, (ii) impairment charges, amortization (or write offs) of financing costs (including debt discount, debt
issuance costs and commissions and other fees associated with Indebtedness, including the Senior Notes, the 2026 Senior Secured Notes, this Agreement and the Existing OMI CreditFirst Lien Revolving Credit Facility Agreement) of such Person and its Subsidiaries and/or
(iii) the impact of acquisition method accounting adjustment and any non-cash write-up, write-down or write-off with respect to re-valuing assets and liabilities in connection with the Transactions or any Investment, deferred revenue or any
effects of adjustments resulting from the application of purchase accounting, purchase price accounting (including any step-up in inventory and loss of profit on the acquired inventory) (provided that if any such non-cash charge, write-down,
expense, loss or item represents an accrual or reserve for potential cash items in any future period, (A) the Parent Borrower may elect not to add back such non-cash charge, expense or loss in the current period and (B) to the extent the
Parent Borrower elects to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA when paid), or other items classified by the Parent Borrower as special items less other
non-cash items of income increasing Consolidated Net Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period);
plus
(g)
the amount of pro forma “run rate” cost savings (including cost savings with respect to salary,
benefit and other direct savings resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions,
other operating improvements (including the entry into material contracts or arrangements), and initiatives and synergies (including, to the extent applicable, from
22
(i) the Transactions, (ii) the effect of new customer contracts or projects and/or (iii) increased pricing or volume in existing contracts) (it is understood and agreed that
“run rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or expected to be taken, net of the amount of actual benefits realized during such period from such actions)
projected by the Parent Borrower in good faith to be reasonably anticipated to be realizable or a plan for realization shall have been established within 24 months of the date thereof (including from any actions taken in whole or in part prior
to such date), which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings (including cost savings with respect to salary, benefit and other direct savings
resulting from workforce reductions and facility, benefit and insurance savings and any savings expected to result from the reduction of a public target’s Public Company Costs), operating expense reductions, other operating improvements and
initiatives and synergies had been realized on the first day of such period, net of the amount of actual benefits realized prior to or during such period from such actions; provided that (A) such costs savings are reasonably identifiable
and factually supportable (in the good faith determination of the Parent Borrower) and (B) the aggregate increase to Consolidated EBITDA for any period pursuant to this clause (g) shall not exceed 30.0% of Consolidated EBITDA for
such period (calculated after giving effect to any increase pursuant to this clause (g)) provided, further, that, the foregoing clause (B) shall only apply to clause (ii) and (iii) in this clause
(g); plus
(h)
any costs or expenses incurred by the Parent Borrower or a Restricted Subsidiary or a Ultimate Parent Entity
pursuant to any management equity plan, stock option plan, phantom equity plan, profits interests or any other management, employee benefit or other compensatory plan or agreement (and any successor plans or arrangements thereto), employment,
termination or severance agreement, or any stock subscription or equityholder agreement, and any costs or expenses in connection with the roll-over, acceleration or payout of Capital Stock held by management, to the extent that such costs or
expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of the Parent Borrower or Net Cash Proceeds of an issuance of Capital Stock (other than Disqualified Equity Interests) of the Parent Borrower, in each case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(i)
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
(j)
any net loss included in the Consolidated Net Income attributable to non-controlling or minority interests
pursuant to the application of Accounting Standards Codification Topic 810-10-45 (or any successor provision or other financial accounting standard having a similar result or effect); plus
23
(k)
the amount of any non-controlling or minority interest expense consisting of Subsidiary income attributable to
non-controlling or minority equity interests of third parties in any non-wholly owned Subsidiary; plus
(l)
(i) unrealized or realized foreign exchange losses resulting from the impact of foreign currency changes and
(ii) gains and losses due to fluctuations in currency values and related Tax effects determined in accordance with GAAP, in each case, to the extent
deducted (and not added back) in computing Consolidated Net Income; plus
(m)
with respect to any joint venture, an amount equal to the proportion of those items described in clauses
(a), (b) and (c) above relating to such joint venture corresponding to the Parent Borrower’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income
(determined as if such joint venture were a Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(n)
the amount of any costs, charges or expenses relating to payments made to stock appreciation or similar rights,
stock option, restricted stock, phantom equity, profits interests or other interests or rights holders of the Parent Borrower or any of its Subsidiaries or any Ultimate Parent Entity in connection with, or as a result of, any distribution being made
to equityholders of such Person or any of its Subsidiaries or any Ultimate Parent Entity, which payments are being made to compensate such holders as though they were equityholders at the time of, and entitled to share in, such distribution, in each
case, to the extent deducted (and not added back) in computing Consolidated Net Income; plus
(o)
any due diligence quality of earnings report from time to time prepared with respect to the target of an
acquisition or Investment by a nationally recognized accounting firm; plus
(p)
losses, charges and expenses related to the pre-opening and opening of new locations, and start-up period prior
to opening, that are operated, or to be operated, by the Parent Borrower or any Restricted Subsidiary; provided that for purposes of calculating the Total Leverage
Ratio and Consolidated Interest Coverage Ratio under Section 7.11(a) and Section 7.11(b), respectively, the aggregate increase to Consolidated EBITDA for any period pursuant to this clause (p) and clause
(r) below shall not exceed 10.0% of Consolidated EBITDA for such period (calculated after giving effect to any increase pursuant to this clause (p) and clause (r) below); plus
(q)
rent expense as determined in accordance with GAAP not actually paid in cash during such period (net of rent
expense paid in case during such period over and above rent expense as determined in accordance with GAAP); plus
24
(r)
losses, charges and expenses related to a new location, plant or facility until the date that is 24 months
after the date of commencement of construction or the date of acquisition thereof, as the case may be; provided that for purposes of calculating the Total Leverage
Ratio and Consolidated Interest Coverage Ratio under Section 7.11(a) and Section 7.11(b), respectively, the aggregate increase to Consolidated EBITDA for any period pursuant to this clause (r) and clause (p) above shall not
exceed 10.0% of Consolidated EBITDA for such period (calculated after giving effect to any increase pursuant to this clause (r) and clause (p) above); plus
(s)
any non-cash increase in expense resulting from the revaluation of inventory (including any impact of changes
to inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments; plus
(t)
(1) the net increase (which, for the avoidance of doubt, shall not be negative), if any, of the difference
between: (i) the deferred revenue of such Person and its Restricted Subsidiaries, as of the last day of such period (the “Determination Date”) and (ii) the deferred revenue of such Person and its Restricted Subsidiaries
as of the date that is 12 months prior to the Determination Date, and (2) without duplication of any adjustment pursuant to clause (1), the net adjustment for the annualized full-year gross profit contribution from new customer
contracts signed during the 12 months prior to the Determination Date; provided that the foregoing clause (2) shall not apply for purposes of calculating the
Total Leverage Ratio and Consolidated Interest Coverage Ratio under Section 7.11(a) and Section 7.11(b), respectively; plus
(u)
any fees, costs and expenses incurred in connection with the adoption or implementation of Accounting Standards
Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect), and any non-cash losses or charges resulting from the application of
Accounting Standards Codification Topic 606—Revenue from Contracts with Customers (or any successor provision or other financial accounting standard having a similar result or effect); plus
(v)
any fees, costs, expenses or charges related to or recorded in cost of sales to recognize cost on a
last-in-first-out basis; and
(2) decreased (without duplication) by extraordinary or other non-recurring, income tax
credits or non-cash income 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 Consolidated EBITDA
in any prior period.
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 Parent Borrower 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 of by the Parent Borrower 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
25
occurring prior to such acquisition) and (B) 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. For purposes of determining
the Consolidated EBITDA for any period, 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, closed or classified as discontinued operations by the Parent Borrower 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) (it being understood that any Person, property, business or asset classified as
discontinued operations by the Parent Borrower or any Restricted Subsidiary during such period as a result of the entry into a binding agreement to sell such Person, property, business or asset shall not constitute a “Sold Entity or
Business” until such sale is actually consummated).
“Consolidated Group” means the Parent Borrower and its
Subsidiaries.
“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date of determination, to (b) Consolidated Interest Expense consisting solely of all interest expense payments made in cash,
including the cash interest component under Capitalized Leases (excluding any operating leases) and the cash interest component under Securitization Transactions for the period of four consecutive fiscal quarters most recently ended on or prior to
such date of determination.
“Consolidated Interest Expense” means, for any period, all interest expense, including the
amortization of debt discount and premium, the interest component under Capitalized Leases and the implied interest component under Securitization Transactions (including, without limitation, the discount in connection with the sale of Receivables
and Receivables Related Assets in connection with a Qualified Securitization Transaction), in each case for the members of the Consolidated Group on a consolidated basis determined in accordance with GAAP.
“Consolidated Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its
Restricted Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided, however, that there will not be included in such Consolidated Net
Income:
(1) any net income (loss) of any Subsidiary if such Person is not a Restricted Subsidiary (including any net income (loss) from
investments recorded in such Person under the equity method of accounting), except that the Parent Borrower’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate
amount of cash or Cash Equivalents actually distributed (or to the extent converted into cash or Cash Equivalents) or that (as determined by the Parent Borrower in its reasonable discretion) could have been distributed by such Person during such
period to the Parent Borrower or a Restricted Subsidiary as a dividend or other distribution or return on investment;
26
(2) solely for the purpose of determining the Available Amount hereof, any net income (loss)
of any Restricted Subsidiary (other than the Guarantors) if such Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Subsidiary, directly or indirectly, to the
Borrowers or a Guarantor by operation of the terms of such Restricted Subsidiary’s articles, charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or
its stockholders (other than (a) restrictions that have been waived or otherwise 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), and (b) restrictions pursuant to this Agreement, the
ExitingFirst Lien
Revolving Credit Facility Agreement, the Senior Notes, the 2026 Senior Secured Notes, the Indentures or other similar indebtedness containing substantially similar restrictions), except that the Parent Borrower’s equity in the net income of any such Restricted Subsidiary for such
period will be included in such Consolidated Net Income up to the aggregate amount of cash or Cash Equivalents actually distributed (or to the extent converted, or having the ability to be converted, into cash or Cash Equivalents) or that could have
been distributed by such Restricted Subsidiary during such period to the Parent Borrower or another Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend to another Restricted Subsidiary, to the limitation
contained in this clause);
(3) any gain (or loss) (a) in respect of facilities no longer used or useful in the conduct of the
business of the Parent Borrower or its Restricted Subsidiaries, abandoned, transferred, closed, disposed or discontinued operations, (b) on disposal, abandonment or discontinuance of disposed, abandoned, transferred, closed or discontinued
operations, and (c) attributable to asset dispositions, abandonments, sales or other dispositions of any asset (including pursuant to any Sale Leaseback) or the designation of an Unrestricted Subsidiary other than in the ordinary course of
business;
(4) (a) any extraordinary, exceptional, unusual or nonrecurring loss, charge or expense, Transaction Expenses, Public Company
Costs, restructuring and duplicative running costs, restructuring charges or reserves (whether or not classified as restructuring expense on the consolidated financial statements), relocation costs, start-up or initial costs for any project or new
production line, division or new line of business, integration and facilities’ or bases’ 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 Borrower, a Subsidiary or an Ultimate Parent Entity had entered into with employees of the Parent Borrower, a Subsidiary or an Ultimate Parent Entity, costs relating to
pre-opening, opening and conversion costs for facilities, losses, costs or cost inefficiencies related to project terminations, facility or property disruptions or shutdowns (including due to work stoppages, natural disasters and epidemics),
signing, retention and completion bonuses (including management bonus pools), recruiting costs, costs incurred in connection with any strategic or cost savings initiatives, transition costs, contract terminations, litigation and arbitration fees,
costs and charges, expenses in connection with one-time rate changes, costs incurred with acquisitions, investments and dispositions (including travel and out-of-pocket costs, human resources costs (including relocation bonuses), litigation and
arbitration costs, charges, fees and expenses (including settlements), management transition costs, advertising costs, losses associated with temporary decreases in work volume and expenses related to maintain underutilized personnel; provided that any losses associated with temporary decreases in work volume and expenses related to maintain underutilized personnel shall not be included for purposes of calculating the
Total Leverage Ratio and Consolidated Interest Coverage Ratio under Section 7.11(a) and Section 7.11(b), respectively) and 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
27
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 strategic or cost-savings initiatives, and curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities and charges resulting from changes
in estimates, valuations and judgments) and professional, legal, accounting, consulting and other service fees incurred with any of the foregoing and (b) any charge, expense, cost, accrual or reserve of any kind associated with acquisition
related litigation and settlements thereof;
(5) (a) at the election of the Parent Borrower with respect to any quarterly period, the
cumulative effect (including charges, accruals, expenses and reserves) of a change in law, regulation or accounting principles and changes as a result of the adoption, implementation or modification of accounting policies, including the adoption or
implementation of last-in-first-out basis accounting standards, (b) subject to the last paragraph of the definition of “GAAP,” the cumulative effect of a change in accounting principles and changes as a result of the adoption or
modification of accounting policies during such period (including any impact resulting from an election by the Parent Borrower to apply IFRS or other accounting changes), and (c) any costs, charges, losses, fees or expenses in connection with
the implementation or tracking of such changes or modifications specified in the foregoing clauses (a) and (b), in each case as reasonably determined by the Parent Borrower;
(6) (a) any equity-based or non-cash compensation or similar charge, cost or expense or reduction of revenue, including any such charge, cost,
expense or reduction arising from any grant of stock, stock appreciation or similar rights, stock options, restricted stock, phantom equity, profits interests or other interests, or other rights or equity- or equity-based incentive programs
(“equity incentives”), any income (loss) associated with the equity incentives or other long-term incentive compensation plans (including under deferred compensation arrangements of the Parent Borrower, any Ultimate Parent Entity or
Subsidiary and any positive investment income with respect to funded deferred compensation account balances), roll-over, acceleration or payout of Capital Stock by employees, directors, officers, managers, contractors, consultants, advisors or
business partners (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Parent Borrower, any Ultimate Parent Entity or Subsidiary, and any cash awards granted to employees of the Parent Borrower and its
Subsidiaries in replacement for forfeited awards, (b) any non-cash losses attributable to deferred compensation plans or trusts or realized in such period in connection with adjustments to any employee benefit plan due to changes in estimates,
actuarial assumptions, valuations, studies or judgments, (c) non-cash compensation expense resulting from the application of Accounting Standards Codification Topic 718, Compensation—Stock Compensation or Accounting Standards Codification
Topics 505-50 Equity-Based Payments to Non-Employees (or any successor provision or other financial accounting standard having a similar result or effect), and (d) any net pension or post-employment benefit costs representing amortization of
unrecognized prior service costs, actuarial losses, amortization of such amounts arising in prior periods, amortization of the unrecognized obligation (and loss or cost) existing at the date of initial application of Statement of Financial
Accounting Standards No. 87, 106 and 112 (or any successor provision or other financial accounting standard having a similar result or effect), and any other item of a similar nature;
(7) any income (loss) from the extinguishment, conversion or cancellation of Indebtedness, Hedging Obligations or other derivative instruments
(including deferred financing costs written off, premiums paid or other expenses incurred);
28
(8) any unrealized or realized gains or losses in respect of any Hedging Obligations or any
ineffectiveness recognized in earnings related to hedge transactions or the fair value of changes therein recognized in earnings for derivatives that do not qualify as hedge transactions;
(9) any fees, losses, costs, expenses or charges incurred during such period (including any transaction, retention bonus or similar payment),
or any amortization thereof for such period, in connection with (a) any acquisition, recapitalization, Investment, Disposition, disposition, issuance or repayment of Indebtedness (including such fees, expense or charges related to the offering,
issuance and rating of the Senior Notes, the 2026 Senior Secured Notes, other securities and any credit facilities), issuance of Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of the Senior
Notes, the 2026 Senior Secured Notes, other securities and
any credit facilities), in each case, including the Transactions and the Amendment No. 2 Transactions, any such transaction consummated prior to, on or after 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 (including, for the avoidance of doubt, the effects of expensing all transaction-related expenses in accordance with Accounting Standards Codification Topic
805—Business Combinations (or any successor provision or other financial accounting standard having a similar result or effect) and any adjustments resulting from the application of Accounting Standards Codification Topic 460—Guarantees
(or any successor provision or other financial accounting standard having a similar result or effect) or any related pronouncements) and (b) complying with the requirements under, or making elections permitted by, the documentation governing
any Indebtedness;
(10) any unrealized or realized gain or loss resulting in such period from currency translation increases or
decreases 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 risk), intercompany loans, accounts receivables, accounts
payable, intercompany balances, other balance sheet items, Hedging Obligations or other obligations of the Parent Borrower or any Restricted Subsidiary owing to the Parent Borrower or any Restricted Subsidiary and any other realized or unrealized
foreign exchange gains or losses relating to the translation of assets and liabilities denominated in foreign currencies;
(11) any
unrealized or realized income (loss) or non-cash expense attributable to movement in mark-to-market valuation of foreign currencies, Indebtedness or derivative instruments pursuant to GAAP;
(12) 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 those required or permitted by Accounting Standards Codification Topic 805–Business Combinations and Accounting Standards Codification 350–Intangibles-Goodwill
and Other (or any successor provision or other financial accounting standard having a similar result or effect)) and related pronouncements, 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, leases, goodwill, intangible assets, in-process research and development, deferred revenue (including deferred costs related thereto and deferred rent) and debt line
items thereof, resulting from the application of acquisition method accounting, recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions and the Amendment No. 2 Transactions or any consummated acquisition
(by merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment or the amortization or write-off or write-down of any amounts thereof;
29
(13) any impairment charge, write-off or write-down, including impairment charges,
write-offs or write-downs related to intangible assets, long-lived assets, goodwill, investments in debt or equity securities (including any losses with respect to the foregoing in bankruptcy, insolvency or similar proceedings) and investments
recorded using the equity method or as a result of a change in law or regulation, in connection with any disposition of assets and the amortization of intangibles arising pursuant to GAAP;
(14) (a) accruals and reserves (including contingent liabilities) that are established or adjusted within 18 months after the closing of
any acquisition or disposition that are so required to be established or adjusted as a result of such acquisition or disposition in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, (b) charges,
accruals, expenses and reserves as a result of adoption or modification of accounting policies, shall be excluded, and (c) earn-out, non-compete and contingent consideration obligations (including to the extent accounted for as bonuses,
compensation or otherwise (and including deferred performance incentives in connection with any acquisition (by merger, consolidation, amalgamation or otherwise), joint venture investment or other Investment whether or not a service component is
required from the transferor or its related party)) and adjustments thereof and purchase price adjustments;
(15) any income (loss)
related to any realized or unrealized gains and losses resulting from Hedging Obligations or embedded derivatives that require similar accounting treatment (including embedded derivatives in customer contracts), and the application of Accounting
Standards Codification Topic 815—Derivatives and Hedging (or any successor provision or other financial accounting standard having a similar result or effect) and its related pronouncements or mark to market movement of non-U.S. currencies,
Indebtedness, derivatives instruments or other financial instruments pursuant to GAAP, including Accounting Standards Codification Topic 825—Financial Instruments (or any successor provision or other financial accounting standard having a
similar result or effect) or an alternative basis of accounting applied in lieu of GAAP;
(16) any non-cash expenses, accruals or reserves
related to adjustments to historical Tax exposures and any deferred tax expense associated with Tax deductions or net operating losses arising as a result of the
Transactions and the Amendment No. 2 Transactions, or the
release of any valuation allowances related to such item;
(17) the amount of (x) board of director (or equivalent thereof)
fees, refinancing, transaction, advisory and other fees (including exit and termination fees) and indemnities, costs and expenses paid or accrued in such period to (or on behalf of) any member of the board of directors (or the equivalent thereof) of
the Parent Borrower, any of its Subsidiaries or any Ultimate Parent Entity, and (y) payments made to option holders of the Parent Borrower or any Ultimate Parent Entity in connection with, or as a result of, any distribution being made to
equityholders of such Person or its Ultimate Parent Entity, which payments are being made to compensate such option holders as though they were equityholders at the time of, and entitled to share in, such distribution, including any cash
consideration for any repurchase of equity;
(18) the amount of loss or discount on sale of Receivables Related Assets and related assets
in connection with a Qualified Securitization Transaction; and
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(19) (i) payments to third parties in respect of research and development, including amounts
paid upon signing, success, completion and other milestones and other progress payments, to the extent expensed, (ii) at the election of the Parent Borrower with respect to any quarterly period, 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), and (iii) at the election of the Parent Borrower 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; provided that the foregoing clauses (i) and (ii) shall not apply for purposes of calculating the Total Leverage
Ratio and Consolidated Interest Coverage Ratio under Section 7.11(a) and Section 7.11(b), respectively.
In addition, to the extent not already excluded (or included, as applicable) in the Consolidated Net Income of such Person and its Restricted
Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall be increased by the amount of: (i) any expenses, charges or losses that are reimbursed by indemnification or other reimbursement provisions
in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder, or, so long as the Parent Borrower has made a determination that there exists reasonable evidence that such amount will in fact
be reimbursed within 365 days of the date of such evidence (net of any amount so added back in a prior period to the extent not so reimbursed within the applicable 365-day period) and (ii) to the extent covered by insurance (including business
interruption insurance) and actually reimbursed, or, so long as the Parent Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is
in fact reimbursed within 365 days of the date of such evidence (net of any amount so added back in a prior period to the extent not so reimbursed within the applicable 365-day period), expenses, charges or losses with respect to liability or
Casualty Events or business interruption. Consolidated Net Income shall be reduced by the amount of distributions actually made to any Ultimate Parent Entity in respect of such period in accordance with Section 7.06(c) as though such
amounts had been paid as taxes directly by such Person for such periods.
“Consolidated Total Assets” means, as of any
date, the sum of (a) all items which would be classified as assets of the members of the Consolidated Group on a consolidated basis determined in accordance with GAAP plus (b) to the extent not included in the foregoing
clause (a), the aggregate net book value of all Receivables transferred to a Securitization Subsidiary or other Person in connection with a Qualified Securitization Transaction.
“Consolidated Total Debt” means, as of any date of determination, (a) the aggregate principal amount of Indebtedness
of the Parent Borrower and its Restricted Subsidiaries outstanding on such date, determined 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, Disqualified Equity Interests, Capitalized Lease Obligations, Indebtedness in respect of any Qualified Securitization
Transaction and debt obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments minus (b) the aggregate amount of unrestricted cash and Cash Equivalents (in each case, free and clear of all Liens
other than any nonconsensual Lien that is permitted under the Loan Documents and Liens of the Collateral Agent for the benefit of the Obligations and for the benefit of any Indebtedness secured on a pari passu basis with the Liens of the
Collateral Agent pursuant to an Acceptable Intercreditor Agreement) included in the consolidated balance sheet of the Parent Borrower and its Restricted Subsidiaries as of such date, which aggregate amount of cash and Cash Equivalents shall be
determined without giving pro forma effect to the proceeds of Indebtedness incurred on such date; provided that Consolidated Total Debt shall not include obligations under Swap Contracts entered into in the ordinary course of business and not
for speculative purposes.
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“Consolidated Working Capital” means, at any date, the excess of
(x) the sum of (i) all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the
Parent Borrower and its Restricted Subsidiaries at such date and (ii) long-term accounts receivable over (y) the sum of (i) all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the Parent Borrower and its Restricted Subsidiaries on such date and (ii) long-term deferred revenue, but excluding, without duplication, (a) the current portion
of any Indebtedness or other long-term liabilities, (b) the current portion of interest, (c) the current portion of current and deferred income taxes, (d) the current portion of any Capitalized Lease Obligations, (e) deferred
revenue arising from cash receipts that are earmarked for specific projects, (f) the current portion of deferred acquisition costs and (g) current accrued costs associated with any restructuring or business optimization (including accrued
severance and accrued facility closure costs).
“Contract Consideration” has the meaning specified in
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.
“Contribution Indebtedness” means unsecured Indebtedness of the Borrowers or any Restricted Subsidiary in an amount equal
to the aggregate amount of cash contributions made after the Closing Date to the Parent Borrower and contributed to any Borrower in exchange for Qualified Equity Interests of the Parent Borrower or the applicable Borrower, as applicable, except to
the extent utilized in connection with any other transaction permitted by Section 7.03, Section 7.06 or Section 7.08, and except to the extent such amount increases the Available Amount or is made from any Cure Amount, RCF Cure Amount or
any Excluded Contribution Amount.
“Control” has the meaning specified in the definition of “Affiliate.”
“Controlled Investment Affiliate” means, as to any Person, any other Person, 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 Borrower and/or other companies.
“Covered Party” has the meaning specified in Section 2.05(b)(i).
“Converted Restricted Subsidiary” has the meaning specified in the
definition of “Consolidated EBITDA.”
“Converted Unrestricted Subsidiary” has the meaning specified in the
definition of “Consolidated EBITDA.”
“Corresponding Tenor” with respect to any Available Tenor means, as
applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Extension” means a Borrowing.
“Cure AmountCovered Party” has the meaning specified in Section 8.052.05(ab)(i
).
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“Cure Period” has the meaning specified in Section 8.05(a).
“Cure Right” has the meaning specified in Section 8.05(a)Credit Extension” means a Borrowing.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day
(such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR
Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s
Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Parent Borrower.
“Debt Rating” means, with respect to the Parent Borrower, the S&P Rating, the Moody’s Rating and/or the Fitch
Rating.
“Debtor Relief Laws” means the Bankruptcy Code of the United States 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 or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.
“Declined Proceeds” has the meaning specified in
Section 2.05(b)(v).
“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) with respect to any overdue principal for any Loan, the applicable interest rate for such Loan plus 2.00% per annum (provided that with respect to Term Benchmark Loans the determination of the applicable
interest rate is subject to Section 2.02(c) to the extent that Term Benchmark Loans may not be converted to, or continued as, Term Benchmark Loans pursuant thereto) and (b) with respect to any other overdue amount, including overdue
interest, the interest rate applicable to Base Rate Loans plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Default Right” has the meaning specified in Section 10.27.
“Defaulting Lender” means any Lender that (a) has failed, within three (3) Business Days of the date required to
be funded or paid, to (i) fund any portion of its Loans required to be funded by it, (ii) [reserved] or (iii) pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder, unless, in
the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and
including the particular default, if any) has not been satisfied, (b) has notified the Parent Borrower or the Administrative Agent or any other Lender in writing that it does not intend or expect to comply with any of its funding obligations
under this Agreement (unless such writing indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan
cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent or any other
33
Lender, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations to fund prospective Loans under this
Agreement; provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Administrative Agent’s or Lender’s receipt of such certification in form and substance satisfactory to it
and the Administrative Agent, (d) has become the subject of a Bankruptcy Event, or (e) has become the subject of a Bail-In Action. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of
clauses (a) through
(fe
) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to the last paragraph
of Section 2.16) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Parent Borrower and each other Lender promptly
following such determination.
“Designated Non-Cash Consideration” means the fair market value of non-cash
consideration received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.05(ml) that is designated as Designated Non-Cash Consideration
pursuant to a certificate of a Responsible Officer of the Parent Borrower setting forth the basis of such valuation.
“Determination Date” has the meaning specified in clause (t) of the definition of “”Consolidated
EBITDA””
herein.
“Discount Range” has the meaning specified in
Section 2.05(d)(ii).
“Discounted Prepayment Option Notice” has the meaning specified in Section
2.05(d)(ii).
“Discounted Voluntary Prepayment” has the meaning specified in Section 2.05(d)(i).
“Discounted Voluntary Prepayment Notice” has the meaning specified in Section 2.05(d)(v).
“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 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 Sale Leaseback and any sale of Equity Interests) 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; provided that (i) “Disposition” and “Dispose” shall not be deemed to include any issuance by the Parent Borrower of any of its Equity Interests to another Person and (ii) no
transaction or series of related transactions shall be considered a “Disposition” for purpose of Section 7.05 unless the fair market value (as determined in good faith by the Parent Borrower) of the property disposed of in
such transaction or series of transactions shall exceed, in any fiscal year, $50,000,000 the greater of (x) $35,000,000 and (y) 10.0% of Consolidated EBITDA of the Parent Borrower for the most recently
ended Test Period.
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“Disqualified Equity Interests” 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 exchangeable) or upon the happening of any event: (a) matures or is mandatorily redeemable for cash or in exchange
for Indebtedness pursuant to a sinking fund obligation or otherwise; or (b) is or may become (in accordance with its terms) upon the occurrence of certain events or otherwise redeemable or repurchasable for cash or in exchange for Indebtedness
at the option of the holder of the Capital Stock in whole or in part, in each case on or prior to the date that is 91 after the Latest Maturity Date at the time such Equity Interests are issued; provided, however, that (i) only
the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Equity Interests and
(ii) any Capital Stock that would constitute Disqualified Equity Interests solely because the holders thereof have the right to require the Parent Borrower to repurchase such Capital Stock upon the occurrence of a Change of Control or asset
sale (howsoever defined or referred to) shall not constitute Disqualified Equity Interests if any such redemption or repurchase obligation is subject to compliance by the relevant Person with the covenant described under Section 7.06;
provided, however, that if such Capital Stock is issued to any future, current or former employee, director, officer, manager or consultant (or their respective Affiliates, Immediate Family Members., successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), of the Parent Borrower, any of its Subsidiaries or any other entity in which the Parent Borrower or a Restricted
Subsidiary has an Investment and is designated in good faith as an “affiliate” by the board of directors of the Parent Borrower (or the compensation committee thereof) or any other plan for the benefit of current, former or future
employees (or their respective Affiliates, Immediate Family Members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) of the Parent Borrower or its Subsidiaries or by any such plan to such employees (or
their respective Affiliates, Immediate Family Members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), such Capital Stock shall not constitute Disqualified Equity Interests solely because it may be
required to be repurchased by the Parent Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Disqualified Lenders” means, unless otherwise consented to by the Parent Borrower in writing to the Administrative Agent
(including via email in accordance with this Agreement), (i) such Persons that have been specified in writing to the Lead Arrangers by the Parent Borrower prior to January 7, 2022, (ii) competitors of the Parent Borrower and its
Subsidiaries that have been specified in writing to the Administrative Agent from time to time by the Parent Borrower and (iii) any of their Affiliates (other than in the case of clauses (i) and (ii), Affiliates that are Bona
Fide Debt Funds) that are (x) identified in writing from time to time to the Administrative Agent by the Parent Borrower or (y) clearly identifiable on the basis of the similarity of such Affiliates’ name; provided that with
respect to any updates pursuant to the previous clauses (ii) and (iii), (x) any such update will not become effective until three Business Days after such designation is provided to the Administrative Agent at
JPMDQ_Contact@jpmorgan.com in addition to its address set forth in Section 10.02 and (y) no such update to the list shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation
interest in, or entered into a trade in respect of the foregoing, in respect of the Loans from continuing to hold or vote such previously acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified
Lenders (it being understood and agreed that such prohibitions with respect to Disqualified Lenders shall apply to any potential future assignments or participations to any such parties). The schedule of Disqualified Lenders shall be maintained with
the Administrative Agent and may be provided to a Lender upon request to the Administrative Agent but shall not otherwise be posted to Lenders.
“Dollar” and “$” mean lawful money of the United States.
35
“Domestic Foreign Holding Company” means any Subsidiary that owns no
material assets (directly or through one or more disregarded entities) other than capital stock (including any Indebtedness that is treated as equity for U.S. Federal income tax purposes) of one or more CFCs.
“Domestic Loan Party” means any Loan Party that is incorporated or organized under the laws of any State of the United
States or the District of Columbia.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the
United States, any state thereof or the District of Columbia.
“Early Settlement Date” has the meaning specified in the Exchange Offering Memorandum.
“ECF Percentage” has the meaning specified in Section 2.05(b)(i).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or
(c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative
authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ECF Percentage” has the
meaning specified in Section
2.05(b)(i).
“Eligible Assignee” means any Assignee permitted by and consented to in accordance with Section 10.07(b).
“Environment” means ambient air, indoor or outdoor air, surface water, groundwater, drinking water, soil, surface and
subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Laws” means any and all
applicable Laws relating to pollution, protection of the Environment or to the generation, transport, storage, use, treatment, handling, disposal, Release or threat of Release of any Hazardous Materials or, to the extent relating to exposure to
Hazardous Materials, human health or safety.
“Environmental Liability” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of or relating to any Loan Party or any of its respective Subsidiaries directly or indirectly resulting from or based upon (a) any
violation of Environmental Law, (b) the generation, use, handling, transportation, storage, disposal or treatment of any Hazardous Materials, (c) exposure of any Person to any Hazardous Materials, (d) the Release or threatened Release
of any Hazardous Materials or (e) any
contract,
or agreement or other consensual arrangement to
the extent liability is assumed or imposed with respect to any of the foregoing.
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“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
a sale of Capital Stock (other than through the issuance of Disqualified Equity Interests or through an Excluded Contribution Amount) other than (a) offerings registered on Form S-8 (or any successor form) under the Securities Act or any
similar offering in other jurisdictions or other securities of the Parent Borrower or any Ultimate Parent Entity and (b) issuances of Capital Stock to any Subsidiary of the Parent Borrower.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with any Loan
Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA with respect to a Pension Plan, whether or not waived, or a failure to make
any required contribution to a Multiemployer Plan; (d) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of
Withdrawal Liability or notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA or in endangered status or critical status, within the meaning of Section 305 of ERISA; (e) the filing of a notice of
intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
(f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (h) a determination that any Pension Plan is, or is expected to be, in “at-risk”
status (within the meaning of Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code); or (i) the occurrence of a non-exempt prohibited transaction with respect to any Pension Plan maintained or contributed to by any Loan
Party (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could result in material liability to any Loan Party.
“Escrow” means an escrow, trust, collateral or similar account or arrangement with a third-party that is not the Parent
Borrower or any of their respective Restricted Subsidiaries or any Affiliate thereof.
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified in Section 8.01.
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“Exchange Act” means the Securities Exchange Act of 1934.
“Excess Cash Flow” means, for any period, an amount equal to the excess of:
(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 (including depreciation and amortization) to the extent deducted in
arriving at such Consolidated Net Income;
(iii) decreases in Consolidated Working Capital for such period (other than any
such decreases arising from acquisitions by the Parent Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting) and decreases in long-term accounts payable for such period;
(iv) an amount equal to the aggregate net non-cash loss on Dispositions by the Parent Borrower and its Restricted Subsidiaries
during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; and
(v) cash receipts in respect of Swap Contracts during such period to the extent not otherwise included in Consolidated Net
Income; over
(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
(including interest) to the extent included in arriving at such Consolidated Net Income;
(ii) [reserved];
(iii) the aggregate amount of all principal payments of Indebtedness of the Parent Borrower and its Restricted Subsidiaries
(including (A) payments of the principal component of Capitalized Lease Obligations and (B) the amount of repayments of Term Loans pursuant to Section 2.07(a) and any mandatory prepayment of Term Loans pursuant to
Section 2.05(b) to the extent required due to a Disposition that resulted in an increase to such Consolidated Net Income and not in excess of the amount of such increase but excluding all other prepayments of Term Loans;
(iv) an amount equal to the aggregate net non-cash gain on Dispositions by the Parent Borrower 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;
(v) increases in Consolidated Working Capital for such period (other than any such increases arising from acquisitions by the
Parent Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting) and increases in long-term accounts payable for such period;
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(vi) cash payments by the Parent Borrower and its Restricted Subsidiaries
during such period in respect of long-term liabilities of the Parent Borrower and its Restricted Subsidiaries other than Indebtedness (including such Indebtedness specified in clause (b)(iii) above);
(vii) [reserved];
(viii) [reserved];
(ix) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Parent Borrower and its
Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness except to the extent that such amounts were financed with the proceeds of an incurrence or issuance of Indebtedness of the
Parent Borrower or its Restricted Subsidiaries (other than revolving loans);
(x) the aggregate amount of expenditures
actually made by the Parent 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 not financed
with the proceeds of an incurrence or issuance of Indebtedness of the Parent Borrower or its Restricted Subsidiaries (other than revolving loans);
(xi) [reserved];
(xii) the amount of cash taxes (including penalties and interest) paid or tax reserves set aside or payable (without
duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period; and
(xiii) cash expenditures in respect of Swap Contracts during such fiscal year to the extent not deducted in arriving at such
Consolidated Net Income.
“Excess Cash Flow Prepayment Amount” has the meaning specified in Section 2.05(b)(i).
“Excess Cash Flow Prepayment Threshold” has the meaning specified in Section 2.05(b)(i).
“Exchange Act” means the Securities Exchange Act of 1934.
“Exchange Offering Memorandum” has the meaning specified in the 2026 First Lien Indenture and the 2026 Second Lien
Indenture.
“Exchange Offers” means the offers by the Parent Borrower to any and all holders of 2021 Indenture Notes and 2022 Indenture Notes to exchange such 2021 Indenture Notes and 2022 Indenture Notes for 2026 First
Lien Notes and 2026 Second Lien Notes, as applicable.
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“Excluded Contribution Amount” means the aggregate amount of cash or Cash
Equivalents (excluding any Cure Amount or any RCF Cure Amount,) received by the Parent Borrower (other than
from any of its Subsidiaries) after the Closing Date from contributions to its common equity capital, minus the aggregate amount of (i) any Investments made pursuant to Section 7.03(n)(ii) (net of any return of capital in
respect of such Investment or deemed reduction in the amount of such Investment), (ii) any Restricted Payment made pursuant to Section 7.06(k)(ii) and (iii) any payments made pursuant to Section 7.08(a)(iii)(C), in
each case made during the period commencing on the Closing Date through and including the date of usage of such Excluded Contribution Amount in reliance thereon (without taking account of the intended usage of the Excluded Contribution Amount as of
such date), designated as an Excluded Contribution Amount pursuant to a certificate of a Responsible Officer on or promptly after the date on which the relevant capital contribution is made or the relevant proceeds are received, as the case may be,
and which are excluded from the calculation of the Available Amount.
“Excluded Equity” means Equity Interests
(i) of any Unrestricted Subsidiary, (ii) of any Foreign Subsidiary or Domestic Foreign Holding Company (in each case other than any Guarantor), in each case of the Parent Borrower or a Domestic Subsidiary of the Parent Borrower and not
otherwise constituting Excluded Equity, in excess of 65% of the issued and outstanding Equity Interests of each such Foreign Subsidiary or Domestic Foreign Holding Company (and of any subsidiary of such Foreign Subsidiary or Domestic Foreign Holding
Company), (iii) of any Subsidiary with respect to which the
AdministrativeFirst
Lien Revolving Credit Facility Agreement Collateral Agent and the Parent Borrower have determined in their reasonable judgment and agreed in writing that the costs ofor other consequences
(including any adverse tax consequences; provided that with respect to adverse tax consequences the determination shall be made by the Parent Borrower in good faith)
of providing a pledge of such Equity Interests or perfection thereof is excessive in view of the benefits to be obtained by the Secured Partiesapplicable
secured parties therefrom, (iv) of any captive insurance companies,Captive Insurance Subsidiaries, not-for-profit Subsidiaries, or special purpose entities, (v) of any non-Wholly Owned Restricted Subsidiary;, (vi) of any Securitization Subsidiary; and, (vii) of any Subsidiary outside the United States (other than any Guarantor) the pledge of which is prohibited by applicable Laws or which would reasonably be expected to result in a violation or breach of,
or conflict with, fiduciary duties of such Subsidiary’s officers, directors or managers, and
(viii) of Accendra Health Foundation and Accendra Executive Deferred Compensation Trust.
“Excluded Property” means (i) any fee-owned real property that is not a Material Real Property and any leasehold interests in real property (it being understood that no
action shall be required with respect to creation or perfection of security interests with respect to such leases, including to obtain landlord waivers, estoppels or collateral access letters), (ii) (A) motor vehicles and other assets
subject to certificates of title to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable Laws in the relevant jurisdiction in the case of jurisdictions other than the
U.S.), (B) letter of credit rights to the extent a Lien thereon cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable Laws in the relevant jurisdiction in the case of jurisdictions other than
the U.S.) and (C) commercial tort claims, (iii) assets for so long as a pledge thereof or a security interest therein is prohibited by applicable Laws, (iv) margin stock, (v) any cash, deposit accounts and securities accounts
(including securities entitlements and related assets) (it being understood that this exclusion shall not affect the grant of the Lien on proceeds of Collateral and all proceeds of Collateral shall be Collateral), (vi) any lease, license or
other agreements, or any property subject to a purchase money security interest, Capitalized Lease Obligation or similar arrangements, in each case to the extent permitted under the Loan Documents, to the extent that a pledge thereof or a security
interest therein would violate or invalidate such lease, license or agreement, purchase money, Capitalized Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than the Borrowers or a Guarantor)
after giving effect to the applicable anti-assignment clauses of the Uniform Commercial Code and applicable Laws, other than the
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proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition, (vii) assets for which a pledge thereof or
security interest therein would result in a material adverse tax consequence as reasonably determined in good faith
by the Parent Borrower (and subject to the reasonable consent of the Administrative Agent); provided that nothing in this clause (vii) shall limit the pledge of assets by any Foreign Subsidiary that is a Guarantor without the Administrative Agent’s consent, (viii) assets
for which the
AdministrativeFirst
Lien Revolving Credit Facility Agreement Collateral Agent and the Parent Borrower have determined in their reasonable judgment and agree in writing that the cost of creating or perfecting such pledges or security interests therein would be
excessive in view of the benefits to be obtained by the
Lendersapplicable
secured parties therefrom, (ix) any intent-to-use trademark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use”
with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark
application under applicable Federal law, (x) Excluded Equity and (xi) any asset of any Subsidiary of the Parent Borrower that is a CFC or Domestic Foreign Holding Company.
“Excluded Subsidiary” means (a) each Subsidiary listed on Schedule 1.01C hereto, (b) any Subsidiary that
is prohibited by applicable Law or by any contractual obligation existing on the Closing Date (or, if later, the date such Subsidiary first becomes a Subsidiary) from guaranteeing the Obligations (and in the case of such contractual obligation, not
entered into in contemplation of the acquisition of such Subsidiary) or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee unless such consent, approval, license or
authorization has been received, (c) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or other similar Investment permitted hereunder that, at the time of such Permitted Acquisition or other similar Investment, has assumedoutstanding
secured Indebtedness not incurred in contemplation of such Permitted Acquisition or other similar Investment and each Restricted Subsidiary that is a Subsidiary thereof that guarantees such Indebtedness, in
each case, to the extent such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor (provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause (c) if such secured
Indebtedness is repaid or becomes unsecured, if such Restricted Subsidiary ceases to be an obligor with respect to such secured Indebtedness or such prohibition no longer exists, as applicable), (d) any Immaterial Subsidiary or Unrestricted
Subsidiary, (e) captive insurance companies,
(f) not-for-profitCaptive Insurance
Subsidiaries, (f) [reserved], (g) special purpose
entities[reserved], (h) any non-Wholly Owned
Subsidiary, (i) any Domestic Foreign Holding Company, (j) any Foreign Subsidiary that is a CFC (other than any Foreign Guarantor), (k) any Domestic Subsidiary of a Foreign Subsidiary that is a CFC (other than any Foreign Guarantor),
(l) any Securitization Subsidiary and (m) any other Subsidiary with respect to which the Administrative Agent and the Borrowers haveParent Borrower has determined in theirits reasonable judgment, and agree in writing, that the cost or other
consequences (including any adverse tax consequences; provided that with respect to adverse tax consequences the determination shall be made by the
Borrowers in consultation with (but without the consent of) the Administrative AgentParent Borrower in good faith) of providing a Guarantee shall beis excessive in view of the benefits to be obtained by the Lenders therefrom; in each case of this definition, unless such Subsidiary is designated by the Parent Borrower as a Guarantor pursuant to the definition of
“Guarantors”; provided that such Subsidiary shall not guarantee any Indebtedness for borrowed money of a Loan Party in an aggregate principal amount in excess of $25,000,000.
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“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap
Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal or unlawful under
the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an
“eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such related Swap
Obligation but for such Guarantor’s failure to constitute an “eligible contract participant” at such time. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, any of the following Taxes imposed on or with respect to any Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document or required to be withheld or deducted from any such payment to any such recipient, (a) Taxes imposed on or measured by net income
(however denominated), franchise Taxes, and branch profits Taxes, in each case, by any jurisdiction (i) imposed as a result of a present or former connection of such Agent, Lender or other recipient, as the case may be, with such jurisdiction
(including as a result of being resident or being deemed to be resident, being organized, maintaining an Applicable Lending Office or carrying on business or being deemed to carry on business in such jurisdiction) other than any connection arising
solely from any Loan Documents or any transactions contemplated thereby, or (ii) that are Other Connection Taxes (b) any U.S. federal withholding Taxes imposed on amounts payable to any Lender pursuant to a law in effect at the time such
Lender becomes a party to this Agreement (other than pursuant to an assignment request by the Borrowers under Section 3.06(a)) or designates a new Applicable Lending Office, except to the extent such Lender’s assignor was entitled
immediately prior to the assignment, or such Lender was entitled immediately before it designated a new Applicable Lending Office, to receive additional amounts from any Loan Party with respect to such Taxes pursuant to Section 3.01(a),
(c) Taxes resulting from a failure of a Lender to comply with Section 3.01(f) or a failure of the Administrative Agent to comply with Section 3.01(g) and (d) any withholding Taxes imposed pursuant to FATCA.
“Existing Apria Credit AgreementQualified Securitization” means that certain
CreditReceivables
Purchase Agreement, dated as of June 21October 18, 20192024, by and between Apria Healthcare Group LLC, Apria Holdings LLC, the other guarantorsamong Owens & Minor Medical, LLC, as the initial servicer, O&M Funding LLC, as seller, the purchasers from time to time party thereto, CitizensPNC Bank, N.A.National
Association, as administrative agent, the lenders party thereto, and the other parties party thereto, as
the same may be amended, restated, supplemented or otherwise modified from time to time.
and PNC
Capital Markets LLC, as structuring agent, and as amended and restated by “Existing OMI Credit Agreement” means that certain CreditAmended and Restated
Receivables Purchase Agreement, dated as of March 10December 31, 20212025, by and among the Borrowers, the Parent Borrower, the Guarantors (as defined therein) party thereto, the Banks (as defined
therein) party thereto, the Lenders (as defined therein) party thereto, Bank of America, N.A.,Byram
Healthcare Centers, Inc., as the initial servicer, O&M Funding LLC, as seller, the purchasers from time to time party thereto, PNC Bank, National Association, as administrative agent, as the same may beand PNC
Capital Markets LLC, as structuring agent, and as further amended, restated, amended and restated,
supplemented or otherwise, modified, extended, renewed, restated or refinanced from time to time.
“Expected Cure
Amount” has the meaning specified in
Section 8.05(b).
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“Extended Term Loans” has the meaning specified in
Section 2.15(a).
“Extension” has the meaning specified in Section 2.15(a).
“Extension Offer” has the meaning specified in Section 2.15(a).
“FATCA” means current Sections 1471 through 1474 of the Code (and any amended or successor version that is substantively
comparable) or any current or future regulations with respect thereto or other official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described
above) and any intergovernmental agreements entered into to implement or further the collection of Taxes imposed pursuant to the foregoing (together with any Law, fiscal or regulatory legislation, rules or practices implementing such agreements,
treaties or conventions).
“FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds
transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate;
provided that, if the Federal Funds Effective Rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Financial Covenants” means the covenants set forth in Section
7.11.
“Financial Covenant Event of Default” has the meaning specified in Section 8.01(b).
“First Lien Leverage Ratio” means, with respect to any Test Period, the ratio of (a) the
Consolidated Total Debt comprising the Obligations and any other Consolidated Total Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Obligations, as of the last day of such Test Period to
(b) Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“First Lien Revolving Credit Facility Agreement” means that certain Credit Agreement, dated as of March 10, 2021, by and among the Borrowers, the Parent Borrower, the Guarantors (as defined therein) party thereto, the Banks (as
defined therein) party thereto, the Lenders (as defined therein) party thereto, Bank of America, N.A., as administrative agent, as amended and restated on or around the Amendment No. 2 Effective Date, as the same may be further amended,
restated, amended and restated, supplemented or otherwise modified from time to time.
“First Lien Revolving Credit Facility Agreement Collateral Agent” shall have the meaning ascribed to the term
“Collateral Agent” in the First Lien Revolving Credit Facility Agreement.
“Fitch” means Fitch, Inc. and any successor thereto.
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“Fixed Charges” means, with respect to any Person for any period, the sum
of:
(1) Consolidated Interest Expense of such Person for such Test Period;
(2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock of any
Restricted Subsidiary of such Person during such period; and
(3) all cash dividends or other distributions paid (excluding items
eliminated in consolidation) on any series of Disqualified Equity Interests of such Person during this period.
“Flood Insurance
Laws” means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any
successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any
successor statute thereto.
“Floor” means the benchmark rate floor, if any, provided in this Agreement (as of
the execution of this Agreement, any modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR, as applicable; provided that the initial Floor for each of
Adjusted Term SOFR Rate or Adjusted Daily Simple SOFR shall be (x) with respect to the Term A-1 Term Facility, 0.0% and (y) with respect to any other Loan,
0.50%.
“Foreign Guarantor” means each Foreign
Subsidiary that is, or may from time to time become party to the Guaranty in accordance with the definition of “Guarantor” herein.
“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to or
by, or entered into with, any Loan Party or any Restricted Subsidiary with respect to employees outside the United States.
“Foreign Subsidiary” means any direct or indirect Subsidiary of the Parent Borrower which is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“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 of its activities.
“GAAP” means generally
accepted accounting principles in the United States, as in effect from time to time; provided that if the Parent Borrower notifies the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the
effect of any change 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 Parent 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.
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“Governmental Authority” means any nation or government, any state,
provincial, country, territorial or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Granting Lender” has the meaning specified in Section 10.07(h).
“Guarantee Obligations” 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 Obligations” shall not include (x) endorsements for collection or deposit, in either case in the ordinary course of business,
(y) any customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to
Indebtedness) or (z) Standard Securitization Obligations and Limited Originator Recourse relating to Qualified Securitization Transactions. The amount of any Guarantee Obligation 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 Obligation 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.
“Guarantees” has the meaning specified in the definition of “Collateral and
Guarantee Requirement.”
“Guarantors” has the meaning specified in the definition of “Collateral and
Guarantee Requirement.” For avoidance of doubt, the Parent Borrower in its sole discretion may cause any Restricted Subsidiary that is not a Guarantor to Guarantee the Obligations by causing such Restricted Subsidiary to execute and deliver to
the Administrative Agent a Guaranty Supplement (as defined in the Guaranty), and any such Restricted Subsidiary shall thereafter be a Guarantor, Loan Party and Subsidiary Guarantor hereunder for all purposes; provided that if such Restricted
Subsidiary is not organized in the United States, (i) the jurisdiction of organization of such Restricted Subsidiary shall be reasonably satisfactory to the Collateral Agent if acting as Collateral Agent or entering into Loan Documents with
Subsidiaries in such jurisdiction is prohibited by applicable Law or would expose the Collateral Agent, in its capacity as such, to material additional liabilities and (ii) such Restricted Subsidiary shall have complied with the Collateral and
Guarantee Requirement prior to the becoming a Guarantor.
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“Guaranty” means, collectively, (a) the Guaranty substantially in the form of Exhibit Ethat certain Guaranty, dated as of March 29, 2022, between, among others, the Loan Parties party thereto as of the date
thereof and the Administrative Agent and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.10.
“Hazardous Materials” means all hazardous, toxic, explosive or radioactive substances or wastes, and all other chemicals,
pollutants, contaminants, substances or wastes of any nature regulated pursuant to any Environmental Laws because of their hazardous, toxic, dangerous or deleterious characteristics or properties, including petroleum or petroleum distillates,
asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and toxic mold.
“Hedge Bank” means any
Person that is (i) a Lender, an Agent, a Lead Arranger or an Affiliate of the foregoing at the time it enters into a Secured Hedge Agreement, or (ii) party to a Swap Contract with a Loan Party or any Restricted Subsidiary that is in effect
as of the Closing Date, in its capacity as a party thereto.
“Hedging Obligations” means, with respect to any Person,
the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contracts, currency
swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
“Immaterial Subsidiary” means at any date of determination, each Restricted Subsidiary of the Parent Borrower that has been
designated by the Parent Borrower in writing to the Administrative Agent as an “Immaterial Subsidiary” for purposes of this Agreement (and not redesignated as a Material Subsidiary as provided below); provided that (a) for
purposes of this Agreement, (i) the total assets or Consolidated EBITDA of each Immaterial Subsidiary shall not exceed (x) 2.5% of Consolidated Total Assets at such date or (y) 2.5% of the total Consolidated EBITDA of the Parent
Borrower and its Restricted Subsidiaries for such Test Period, in each case determined on a consolidated basis in accordance with GAAP and (ii) at no time shall the total assets of all Immaterial Subsidiaries at the last day of the most recent
Test Period or the Consolidated EBITDA of all Immaterial Subsidiaries for such Test Period exceed (x) 7.5% of Consolidated Total Assets at such date or (y) 7.5% of the total Consolidated EBITDA of the Parent Borrower and its Restricted
Subsidiaries for such period, in each case determined on a consolidated basis in accordance with GAAP, (b) the Parent Borrower shall not designate any new Immaterial Subsidiary if such designation would not comply with the provisions set forth
in clause (a) above, and (c) if the Consolidated Total Assets or the Consolidated EBITDA of all Restricted Subsidiaries so designated by the Parent Borrower as “Immaterial Subsidiaries” (and not redesignated as
“Material Subsidiaries”) shall at any time exceed the limits set forth in clause (a) above, then all such Restricted Subsidiaries shall be deemed to be Material Subsidiaries unless and until the Parent Borrower shall
redesignate one or more Immaterial Subsidiaries as Material Subsidiaries, in each case in a written notice to the Administrative Agent, and, as a result thereof, the total assets and gross revenues of all Restricted Subsidiaries still designated as
“Immaterial Subsidiaries” do not exceed such limits; and provided, further, that the Parent Borrower may designate and re-designate a Restricted Subsidiary as an Immaterial Subsidiary at any time, subject to the terms set forth in
this definition.
46
“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 estate 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 Equivalent Debt” has the meaning specified in Section 7.01(p).
“Incremental Facility Amendment” has the meaning specified in Section 2.14(d).
“Incremental Facility Closing Date” has the meaning specified in Section 2.14(e).
“Incremental Incurrence Test” has the meaning specified in Section 2.14(a).
“Incremental Term Commitments” means any commitments to provide Incremental Term Loans
“Incremental Term
AB Loans” has the meaning
specified in Section 2.14(a).
“Incremental Term
B
Loans”
has the meaning specified in Section 2.14(a)Commitments” means any commitments to provide Incremental Term
Loans.
“Incremental Term Loans” has
the meaning specified in Section 2.14(a).
“Indebtedness” means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(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 letters of credit (including standby and commercial), banker’s 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 or services (other than
(i) trade accounts payable in the ordinary course of business and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid within thirty
(30) days after becoming due and payable);
(e)
indebtedness (excluding prepaid interest thereon) 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;
47
(f)
all Attributable Indebtedness;
(g)
all obligations of such Person in respect of Disqualified Equity Interests; and
(h)
all Guarantee Obligations of such Person in respect of any of the foregoing.
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, company, 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 limited,
(B) in the case of the Parent Borrower 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
consistent with past practice and (C) except for purposes of calculating the Consolidated Interest Coverage Ratio to the extent the interest expense in respect thereof is not covered by proceeds held in Escrow or in connection with any test
date of any Limited Condition Transaction or any test related to a subsequent transaction, exclude Indebtedness incurred in advance of, and the proceeds of which are to be applied in connection with, the consummation of a transaction solely to the
extent the proceeds thereof are and continue to be held in an Escrow and are not otherwise made available to such Person. 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) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the
property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” has the meaning
specified in Section 10.05.
“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes,
imposed on or in respect of any payment made by or on account of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 10.05.
“IndentureIndentures” means collectively, the 2014 Indenture, 2021 Indenture and, 2022 Indenture, 2026 First Lien Indenture and 2026 Second Lien
Indenture.
“Information” has the meaning specified in
Section 10.08.
“Initial Term A-1 Commitment” means, as to each Initial Term A-1 Lender, its obligation to
make an Initial Term A-1 Term Loan to the Borrowers pursuant to Section 2.01(b) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on each of Schedule 2.01 under the header ““Initial Term A-1
Commitments””
, or in the Assignment and Assumption pursuant to which such Initial Term A-1 Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement. The initial aggregate amount of the Initial Term A-1 Commitments as of the Closing Date iswas $500,000,000.
“Initial Term A-1 Lender” means, at any time, any Lender that has an Initial Term A-1 Commitment or an Initial Term A-1
Loan at such time.
“Initial Term A-1 Maturity Date” has the meaning specified in the definition of “Maturity
Date”.
48
“Initial Term A-1 Term Loan” means a Loan made pursuant to
Section 2.01(b).
“Initial Term B-1 Commitment” means, as to each Initial Term B-1 Lender, its obligation
to make an Initial Term B-1 Term Loan to the Borrowers pursuant to Section 2.01(a) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on each of Schedule 2.01 under the header ““Initial Term B-1
Commitments””
, or in the Assignment and Assumption pursuant to which such Initial Term B-1 Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement. The initial aggregate amount of the Initial Term B-1 Commitments as of the Closing Date iswas $600,000,000.
“Initial Term B-1 Lender” means, at any time, any Lender that has an Initial Term B-1 Commitment or an Initial Term B-1
Loan at such time.
“Initial Term B-1 Maturity Date” has the meaning specified in the definition of “Maturity
Date”.
“Initial Term B-1 Term Loan” means a Loan made pursuant to Section 2.01(a).
“Initial Term Borrowing” means the borrowing of the Term Loans on the Closing Date.
“Initial Term Lender” means, at any time, any Initial Term A-1 Lender and any Initial Term B-1 Lender.
“Initial Term Loan” means any Initial Term A-1 Term Loan and any Initial Term B-1 Term Loan.
“Inside Maturity Debt” means,
with respect to any Incremental Term Loans, Incremental Equivalent Debt, Refinancing Term Loans, Indebtedness permitted pursuant to
Section 7.01(n), (p) or (u), Permitted Debt Exchange Notes and any Permitted Refinancing in respect of the foregoing, an aggregate amount up to the greater of (x) $330 million and (y) 50% of
Consolidated EBITDA as of the most recently ended Test Period at any time outstanding; provided that no such Inside
Maturity Debt shall have a final maturity date earlier than the Initial Term A-1 Maturity Date.
“Interest Payment Date” means (a) with respect to any Base Rate Loan, the last day of each of March, June, September
and December and the Maturity Date and (b) with respect to any Term Benchmark Loan, the last day of each Interest Period applicable to the borrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an Interest
Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Maturity Date.
“Interest Period” means with respect to any Term Benchmark Borrowing, the period commencing on the date of such borrowing
and ending on the numerically corresponding day in the calendar month that is one (1), three (3) months or 6 (six) months thereafter (in each case, subject to the availability for the Benchmark applicable to the Term Loan or Term Commitment, as
the Parent Borrower may elect in their Committed Loan Notice); provided that
(i) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day,
49
(ii) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and
(iii) no tenor that has been removed from this definition pursuant to Section 3.03 shall be available for
specification in such Committed Loan Notice or Committed Loan Notice. 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. No more than seven (7) Term Benchmark Loans may be in effect at any time; provided that, at any time Incremental Term Loans are outstanding, no more than ten (10) Term Benchmark Loans may be in
effect at any time.
“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 to, Guarantee Obligation with respect to any obligation 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 Borrower and its Restricted
Subsidiaries, 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 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 shall be the amount actually invested, without adjustment for subsequent increases or decreases in the
valueoutstanding at any time shall be the original cost of such
Investment.,
reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash or Cash Equivalents by the Parent Borrower or a Restricted Subsidiary in respect of such Investment to the extent such amounts do
not increase any other baskets under this Agreement.
“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 an equivalent rating by Fitch, Inc.
“IP Rights” has the meaning specified in Section 5.14.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc.
or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor
thereto.
“Junior Lien Intercreditor Agreement” means that certain Junior Lien Intercreditor Agreement, dated as of the Amendment
No. 2 Effective Date, among the Collateral Agent, Bank of America, N.A., as collateral agent under the First Lien Revolving Credit Facility Agreement, Regions Bank as collateral agent under the 2026 First Lien Indenture and Regions Bank as
collateral agent under the 2026 Second Lien Indenture, and the representatives for purposes thereof for holders of one or more other classes of Indebtedness, and acknowledged and agreed by the Loan Parties, as amended, restated, supplemented or
otherwise modified from time to time in accordance with the requirements thereof and of this Agreement, and which shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof (so long as such
replacement intercreditor agreement would qualify as an Acceptable Intercreditor Agreement for Indebtedness
that is permitted hereunder to be secured by Liens on the Collateral that are junior to the Liens securing the Obligations).
50
“JV Entity” means any joint venture of the Parent Borrower or any
Restricted Subsidiary that is not a Subsidiary.
“Latest Maturity Date” means, at any date of determination, the latest
Maturity Date applicable to any Loan or Term Commitment hereunder at such time, including the latest maturity date of any Incremental Term Commitment, in each case as extended in accordance with this Agreement from time to time.
“Laws” means, collectively, all international, foreign, federal, state, provincial and local laws (including common laws),
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents 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.
“LCT Election” has the meaning specified in Section 1.09(a).
“LCT Test Date” has the meaning specified in Section 1.09(a).
“LCT Representations” has the
meaning specified in Section
5.19.
“Lead Arrangers” means JPMorgan Chase Bank, N.A., BofA Securities, Inc., Citibank, N.A., Citizens Bank, N.A., PNC Capital
Markets LLC, Regions Capital Markets, Capital One, N.A. and KKR Capital Markets LLC, in their capacities as Joint Lead Arrangers and Joint Bookrunners under this Agreement.
“Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, and their
respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender.”
“Lender
Participation Notice” has the meaning specified in Section 2.05(b)(iii).
“Liability Management Transaction” means any refinancing, retirement, exchange, extension, repurchase, or defeasance of any Loans or any Indebtedness for borrowed money that is contractually or structurally junior thereto
with any other Indebtedness that is contractually, structurally or temporally senior (including as to Lien priority or additional collateral) to such Loans (including, for the avoidance of doubt, through any incurrence of Indebtedness by a Person
that is not a Borrower or a Guarantor, whether or not such Person owns any assets or property), and any asset transfer (and including any related assumption of liabilities) consummated in connection therewith; provided that, for the avoidance of doubt, in no event shall any of the following constitute a Liability Management
Transaction: (a) any refinancing, retirement, exchange, extension, repurchase, or defeasance of any existing Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries that is already contractually, structurally or temporally
senior (including as to Lien priority or additional collateral) to such Loans, with Indebtedness that is so senior to no greater extent, (b) any Indebtedness that is offered ratably on the same terms and conditions as offered to all other
providers of such Indebtedness (other than bona fide backstop fees and
51
reimbursement of counsel fees and other expenses in connection
with the negotiation of the terms of such transaction), to all adversely affected Lenders, and (c) any Indebtedness (x) incurred in connection with the Amendment No. 2 Transactions or (y) incurred to finance the repurchase of or
in exchange for Senior Notes in compliance with Section 7.01 and Section 7.06.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge, assignment (by way of security or otherwise), deemed trust, 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 Capitalized Lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Transaction” means (x) any acquisition or other investment, including by way of merger, by the
Parent Borrower or one or more of its Restricted Subsidiaries permitted pursuant to this Agreement whose consummation is not conditioned upon the availability of, or on obtaining, third party financing and (y) any redemption, repurchase,
defeasance, satisfaction and discharge or repayment of indebtedness requiring irrevocable notice in advance of such redemption, repurchase, satisfaction and discharge or repayment.
“Limited Originator Recourse” means a letter of credit, cash collateral account or other credit enhancement issued or
provided for a similar purpose in connection with the incurrence of Indebtedness by a Securitization Subsidiary under a Qualified Securitization Transaction.
“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Term Loan (including
any Incremental Term Loans or any Extended Term Loans).
“Loan Documents” means, collectively, (i) this Agreement,
(ii) the Notes, (iii) each Guaranty, (iv) the Collateral Documents and, (v) the Closing DatePari Passu
First Lien Intercreditor Agreement, (vi) the Junior
Lien Intercreditor Agreement, (vii) any other Acceptable Intercreditor Agreement, and (viii) Amendment No. 2, in each case, astogether with any
amendments thereto and as such documents may be amended in accordance with this Agreement.
“Loan Parties” means, collectively, (i) the Borrowers and (ii) each Guarantor.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of common stock
or common equity interests of the Parent Borrower or its direct or indirect parent 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 stock or common
equity interests on the principal securities exchange on which such common stock or common equity interests are traded for the thirty (30) consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
“Master Agreement” has the meaning specified 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 Parent Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations
under any Loan Document to which any of the Loan Parties is a party or (c) a material adverse effect on the rights and remedies of the Lenders or the Agents under any Loan Document.
52
“Material Real Property” means
(a) each fee-owned real property set forth on Schedule 1.01E and (b) other than Excluded Property, any fee-owned real property acquired by any Loan Party following the Closing Date (or owned by any Person that becomes a Loan
Party after the Closing Date) located in the United States with a fair market value in excess of $15,000,000.
“Material Subsidiary” means, at any date of determination, each Restricted Subsidiary of the Parent Borrower that is not an
Immaterial Subsidiary (but including, in any case, any Restricted Subsidiary that has been designated as a Material Subsidiary as provided in, or that has been designated as an Immaterial Subsidiary in a manner that does not comply with, the
definition of “Immaterial Subsidiary”); provided that no Securitization Subsidiary shall constitute a Material Subsidiary.
“Maturity Date” means (a)(i) with respect to the Initial Term A-1 Loans, the fifth anniversary of the Closing Date (the
“Initial Term A-1 Maturity Date”), and (ii) with respect to the Initial Term B-1 Loans, the seventh anniversary of the Closing Date (the “Initial Term B-1 Maturity Date”), (b) with respect to any
Extended Term Loan, the maturity date applicable to such Extended Term Loan in accordance with the terms hereof or (c) with respect to any Incremental Term Loan, the maturity date applicable to such Incremental Term Loan in accordance with the
terms hereof; provided that if any such day is not a Business Day, the Maturity Date shall be the Business Day immediately preceding such day.
“Maximum Tender Condition” has the meaning specified in Section 2.17(b).
“Merger” has the meaning set forth in the preliminary statements to this Agreement.
“Merger Agreement” has the meaning set forth in the preliminary statements to this Agreement.
“Merger Sub” has the meaning set forth in the preliminary statements to this Agreement.
““MFN Adjustment”” has the meaning specified in Section 2.14(b).
“Minimum Extension
Condition” has the meaning specified in Section 2.15(b).
“Minimum Tender Condition” has the
meaning specified in Section 2.15(b).
“Minimum Tranche Amount” has the meaning specified in
Section
2.172.15
(b).
“Moody’s” means Moody’s Investors
Service, Inc. and any successor thereto.
“Mortgage” means a deed of trust, trust deed, deed of hypothecation, security
deed or mortgage, as applicable, in each case, creating and evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the
Collateral Agent on behalf of the Secured Parties, in form and substance reasonably satisfactory to the Collateral Agent.
“Mortgage Policies” has the
meaning specified in paragraph (f) of the
definition of Collateral and Guarantee Requirement.
“Mortgaged
Property” means each Material Real Property, if any, which shall be subject to a Mortgage delivered pursuant to Section 6.10 and/or Section 6.12, as applicable.
53
“Multiemployer Plan” means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the immediately preceding six (6) years, has made or been obligated to make contributions.
“Net Cash Proceeds” means:
(a) with respect to the Disposition of any asset by the Parent Borrower or any Restricted Subsidiary or any Casualty Event, an amount equal to
the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a
note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of the Parent
Borrower or any Restricted Subsidiary) over (ii) the sum of (A) the principal amount, premium (including
tender premiums) or penalty, if any, interest and other, defeasance costs, underwriting discounts, original issue discount, upfront fees or similar fees and other amounts on any Indebtedness that is secured by the asset (or Indebtedness owned by a Non-Loan Party that owns 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 and Indebtedness that is secured by Liens ranking junior to or pari passu with the Liens securing Obligations under the
Loan Documents), (B) the out-of-pocket fees and expenses (including attorneys’ 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 by the Parent Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) taxes paid or reasonably
estimated to be actually payable in connection therewith (including, for the avoidance of doubt, any income, withholding and other taxes payable as a result of the distribution of such proceeds to the Parent Borrower), and (D) any reserve for
adjustment in respect of (x) the sale price of such asset or assets or purchase price adjustment established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by the Parent Borrower or any
Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or with respect to any indemnification obligations associated with
such transaction, it being understood that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by the Parent Borrower or any Restricted Subsidiary in any
such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or if such liabilities have not been satisfied in
cash and such reserve is not reversed within 365 days after such Disposition or Casualty Event, the amount of such reserve; and
(b) with respect to the incurrence or issuance of any Indebtedness by
the Parent Borrower or any Restricted Subsidiary, the excess, if any, of (x) the sum of the cash received in connection with such incurrence or issuance over (y) the investment banking fees, underwriting discounts, commissions, Taxes,
costs and other out-of-pocket expenses and other customary expenses incurred by the Parent Borrower or such Restricted Subsidiary in connection with such incurrence or issuance; and
(c)
(iii) with respect to any Permitted Equity Issuance by any direct or indirect parent of the Parent
Borrower, the amount of cash from such Permitted Equity Issuance contributed to the capital of the Parent Borrower.
54
“Necessary Cure Amount” has
the meaning specified in Section
8.05(b).
“Non-Consenting Lender” has the meaning specified in Section 3.06(d).
“Non-Extending Lender” means any Lender that elects not to participate in an Extension pursuant to
Section 2.15.
“Non-Loan Party” means any Restricted Subsidiary of the Parent Borrower that is not a Loan
Party.
“Note” means a Term Note.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and
(b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the
term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided,
further, that if any of the aforesaid rates as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations” means (w) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party
or other Subsidiary arising under any Loan Document or otherwise with respect to any Loan, 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 any other 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, (x) Hedging Obligationsobligations of any Loan Party or any other Restricted Subsidiary arising
under any Secured Hedge Agreement (other than any Excluded Swap Obligations) and (y) Cash Management Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of any of
their Subsidiaries to the extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs,
indemnities and other amounts, in each case, payable by any Loan Party or any other Subsidiary under any Loan Document and (b) the obligation of any Loan Party or any other Subsidiary 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 or such Subsidiary.
“Offered Loans” has the meaning specified in Section 2.05(d)(iii).
“OMI Administrative Agent” shall have the meaning ascribed in the Existing OMI Credit Agreement.
55
“Organization Documents” means (a) with respect to any corporation
or company, the certificate or articles of incorporation or amalgamation, the memorandum and articles of association, any other constitutional documents, any certificates of change of name and/or the bylaws; (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, declaration, 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.
“Other Applicable Indebtedness” has the meaning specified in Section 2.05(b)(ii)(A).
“Other Connection Taxes” means, with respect to any recipient, Taxes imposed as a result of a present or former connection
between such recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary Taxes and any intangible, mortgage recording or
similar Taxes which 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, excluding, in each case, any such Tax resulting from an Assignment and Assumption or transfer or assignment to or designation of a new Applicable Lending Office or other office for receiving payments under any Loan Document (an
“Assignment Tax”) but only if (a) such Assignment Tax is an Other Connection Tax and (b) such Assignment Tax does not arise as a result of an assignment (or designation of a new Applicable Lending Office) pursuant to a
request by a Borrower under Section 3.06.
“Outstanding Amount” means with respect to the Term Loans on any
date, the amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans occurring on such date.
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight
eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next
succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Parent Borrower” has the meaning specified in
the introductory paragraph to this Agreement.
“Pari Passu First Lien Intercreditor Agreement” means that certain Amended and Restated First Lien Pari Passu
Intercreditor Agreement, dated as of the Amendment No. 2 Effective Date, among the Collateral Agent, Bank of America, N.A., as collateral agent under the First Lien Revolving Credit Facility Agreement, Regions Bank, as collateral agent under
the 2026 First Lien Indenture and the representatives for purposes thereof for holders of one or more other classes of Indebtedness, and acknowledged and agreed by the Loan Parties, as amended, restated, supplemented or otherwise modified from time
to time in accordance with the requirements thereof and of this Agreement, and which shall also include any replacement intercreditor agreement entered into in accordance with the terms hereof (so long as such replacement intercreditor agreement would qualify as an Acceptable Intercreditor Agreement for Indebtedness that is permitted hereunder to be secured
by Liens on the Collateral that are pari passu with the Liens securing the Obligations).
56
“Participant” has the meaning specified in Section 10.07(e).
“Participant Register” has the meaning specified in Section 10.07(e).
“Payment” has the meaning assigned to it in Section 9.15(a).
“Payment Notice” has the meaning assigned to it in Section 9.15(b).
“PBGC” means the Pension Benefit Guaranty Corporation.
“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 (6) years.
“Permitted Acquisition” has the meaning specified in Section 7.03(j).
“Permitted Debt Exchange” has the meaning specified in Section 2.17(a).
“Permitted Debt Exchange Notes” has the meaning specified in Section 2.17(a).
“Permitted Debt Exchange Offer” has the meaning specified in Section 2.17(a).
“Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests other than a sale or issuance that
would constitute an Excluded Contribution Amount.
“Permitted Liens” means:
(a)
Liens (x) incurred to secure
any Cash Management Obligations or other “bank products” (including those described in Section 7.01(q)) and (y) created by or arising under (x) the Loan Documents in
favor of the Administrative Agent on behalf of the Secured Parties and the other holders of the Obligations and Liens created by or arising under the Loan Documents in favor of the Collateral Agent on behalf of the Secured Parties and (y) the Existing OMI Credit Agreement;
(b)
Liens (other than Liens created or imposed under ERISA) for taxes, assessments or governmental charges or
levies not overdue for a period of more than thirty (30) days or Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established (and as to which the
property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);
57
(c)
statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and
other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business; provided that such Liens secure only amounts not yet due and payable or, if due and payable, not overdue for a
period of more than thirty (30) days and unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet subject to foreclosure, sale or loss on account thereof);
(d)
Liens arising in the ordinary course of business under supplier agreements or securing related obligations to
suppliers;
(e)
Liens that are non-exclusive licenses of IP Rights granted in the ordinary course of business;
(f)
Liens (other than Liens created or imposed under ERISA) incurred or deposits made by any member of the
Consolidated Group in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(g)
Liens securing judgments for the payment of money not constituting an Event of Default under
Section 8.01(h);
(h)
easements, rights-of-way, restrictions (including zoning restrictions), minor defects or irregularities in
title and other similar charges or encumbrances that do not secure any monetary obligations and do not, in any material respect, impair the use of the encumbered real property in the ordinary course of business;
(i)
Liens on property of any Person securing Indebtedness (including Capitalized
Leases, Indebtedness in respect of Sale Leasebacks and synthetic leases) of a Loan Party to the extent permitted under
SectionSections
7.01(c) or 7.01(cc);
(j)
leases or subleases granted to others not interfering in any material respect with the business of any member
of the Consolidated Group;
(k)
any interest or title of a lessor under, and Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(l)
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;
(m)
Liens deemed to exist in connection with Investments in repurchase agreements which constitute Investments
permitted under Section 7.03;
(n)
normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions;
(o)
Liens created or deemed to exist in connection with a Qualified Securitization Transaction permitted under
Section 7.01(f) (including any related filings of any financing statements), but only to the extent that any such Lien relates to the applicable Receivables Related Assets actually sold, contributed, financed or otherwise conveyed or
pledged pursuant to such transaction;
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(p)
Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(q)
Liens existing on the date
hereofAmendment No. 2 Effective Date and, to the extent securing obligations in excess of $5,000,000, set forth on Schedule 7.02;
(r)
Liens securing Indebtedness (or other obligations not constituting Indebtedness) of any member of the
Consolidated Group incurred pursuant to Section 7.01(h)(A) (solely with respect to Indebtedness under the 2014 Indenture as in effect on the date
hereof),B), Section 7.01(h)(C)
and,
Section 7.01(oh)(in the case of clause (o), only to
the extent secured by assets of such Non-Loan Parties which are not CollateralD) and Section 7.01(h)(E);
(s)
Liens securing Indebtedness permitted pursuant to Section 7.01(u) and 7.01(aa);
provided that, to the extent such Liens are on the Collateral, such Liens may be either a Lien on the Collateral that is pari passu with the Lien securing the Obligations or a Lien ranking junior to the Lien on the Collateral securing the
Obligations and, in any such case, the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable Intercreditor Agreement;
(t)
Liens on cash deposits not to exceed $50,000,00025,000,000 in the aggregate at any time outstanding for the purpose of collateralizing certain financial obligations under any workers’ compensation,
unemployment insurance and other types of social security in the ordinary course;
(u)
Liens on the cash proceeds (and the related escrow account, and any money market funds or securities in which
such cash proceeds are temporarily invested during the applicable escrow period) of any issuance of Indebtedness permitted pursuant to Section 7.01 in connection with the cash proceeds of such Indebtedness being placed into (and pending
the release from) escrow;
(v)
Liens created in the ordinary course of business in favor of banks and other financial institutions over
balances of any bank accounts of any Foreign Subsidiary held at such banks or such financial institutions, as the case may be, to facilitate the operation of cash pooling arrangements in respect of such bank accounts in the ordinary course of
business;
(w)
Liens securing Indebtedness permitted to be secured pursuant to Section 7.01(n) or
Section 7.01(p); provided that to the extent such Liens are on the Collateral, such Liens may be either
(x) a Lien that is pari passu with the
LienLiens securing the Obligations
(with respect to Indebtedness incurred pursuant to Section 7.01(n), to the extent such Liens secure Indebtedness in an aggregate principal amount at any one time
outstanding not exceeding $35,000,000) or (y) a Lien ranking junior to the LienLiens securing the Obligations and, in any such case, the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable Intercreditor
Agreement;
(x)
[reserved];
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(y)
other Liens securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding
not to exceed the greater of (x) $265,000,00050,000,000 and
(y) 4015% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on
a Pro Forma Basis; provided that to the extent such Liens are on the Collateral, such Liens may only rank junior
to the Liens securing the Obligations;
(z)
with respect to any Foreign Subsidiary, other Liens and privileges arising mandatorily by Law;
(aa)
the modification, replacement, renewal or extension of any Lien permitted by clauses (i) and
(q) above and (dd) below; 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 7.01, 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 7.01;
(bb)
Liens securing Indebtedness permitted pursuant to Section 7.01(k); provided that,
(i) such Liens shall only secure the obligations secured on the date of the related Permitted Acquisition or other similar Investment and such liens shall not extend to any other property of the Parent Borrower and its Restricted Subsidiaries
that is not after-acquired property of the relevant acquired entities contemplated to be secured by such Indebtedness on the date of assumption thereof (and for the avoidance of doubt, no such after-acquired property shall be property of the Parent
Borrower and its Restricted Subsidiaries in existence prior to such date of assumption) and (ii) to the extent such Liens are on the Collateral, the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable
Intercreditor Agreement;
(cc)
Liens in favor of the Parent Borrower or a Restricted Subsidiary securing Indebtedness permitted under
Section 7.01(e)(i) (provided that, solely with respect to Indebtedness required to be Subordinated Debt under Section 7.01(e)(i), such Lien shall be subordinated to the Liens on the Collateral securing the Obligations to the
same extent);
(dd)
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 6.13), in each case after the date
hereofClosing Date; 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 7.01;
(ee)
Liens securing Indebtedness permitted pursuant to Section 7.01(q);
and Section 7.01(z);
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(ff)
Liens securing Hedging
Obligations and obligations existing or arising under any Swap Contract permitted pursuant to Section
7.01(g).;
(gg)
Liens securing Indebtedness
permitted to be secured pursuant to Section 7.01(j); provided that to the extent such Liens are on the Collateral, such Liens may only rank junior to the Liens securing the Obligations;
and
(hh)
Liens on assets securing any
Indebtedness owed to any Captive Insurance Subsidiary by the Parent Borrower or any Restricted Subsidiary.
For purposes of determining compliance with this definition, in the event that a Lien meets the criteria of more than one of the categories of
Liens described in clauses (a) through
(ffhh
) above, the Borrowers may, in their sole discretion, classify and reclassify or later divide, classify or reclassify such Lien (or any portion thereof) and will only be required to include the amount
and type of such Lien in one or more of the above clauses; provided that all Liens outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this definition. To
the extent any Lien permitted by this definition may secure Indebtedness permitted by Section 7.01, such Lien shall also be deemed to permit Liens securing obligations not constituting Indebtedness as a result of the accrual of interest,
the accretion of accreted value, the amortization of original issue discount and the payment of interest.
“Permitted
Refinancing” means, with respect to any Person, any modification (other than a release of such Person), refinancing, refunding, renewal 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 or extended except by an amount equal to unpaid accrued interest and
premium thereon, plus amounts that would otherwise be permitted under Section 7.01 (with such amounts being deemed utilization of the applicable basket or exception under Section 7.01), plus other reasonable amounts paid, and
fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under
Section 7.01, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.01(c), such modification, refinancing, refunding, renewal or extension has a final maturity
date equal to or later than the final maturity date of, and 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 or extended or, if
earlier, the applicable Latest Maturity Date (provided that the foregoing requirements of this clause (b) shall not apply to any Inside Maturity
Debt and Qualifying Bridge Facility), (c) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is secured by a Lien on the Collateral,
(i) the Lien securing such Indebtedness as modified, refinanced, refunded, renewed or extended shall not be senior in priority to the Lien on the Collateral securing the Indebtedness being modified, refinanced, refunded, renewed or extended
unless otherwise permitted under any basket or exception under the definition of “Permitted Liens” (with such amounts constituting utilization of the applicable basket or exception under the definition of “Permitted Liens”)
and (ii) such Indebtedness as so modified, refinanced, refunded, renewed or extended shall not be secured by any assets of the Parent Borrower or its Restricted Subsidiaries that does not secure the Indebtedness being modified, refinanced,
refunded, renewed or extended, (d) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is unsecured, such modification, refinancing, refunding, replacement or extension shall also be unsecured unless
secured by Liens that are otherwise permitted under any basket or exception under the definition of “Permitted Liens” (with such amounts constituting utilization of the applicable basket or
61
exception under the definition of “Permitted Liens”) and (e) if such Indebtedness being modified, refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to
Section 7.01, (i) to the extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal 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 so modified, refinanced, refunded, renewed or extended unless otherwise
permitted by any basket or exception under Section 7.01 (with such amounts constituting utilization of the applicable basket or exception under Section 7.01), (ii) in the case of Indebtedness initially incurred pursuant
to Section 7.01(b) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended
Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended (other than in the case of terms
applying to periods after the then Latest Maturity Date or otherwise added for the benefit of the Lenders hereunder); provided that a certificate of a Responsible Officer of the Parent Borrower 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
Parent Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the
Parent Borrower within such five (5) Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or
extension is incurred by a Person who is the obligor of the Indebtedness being so modified, refinanced, refunded, renewed or extended, and no additional obligors become liable for such Indebtedness except to the extent permitted by any basket or
exception under Section 7.01 (with such amounts constituting utilization of the applicable basket or exception under Section 7.01).
“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) other than a Foreign Plan, established or maintained 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.
“Plan Assets” means “plan assets” within the meaning of U.S. Department of Labor Regulation 29 C.F.R.
Section 2510.3-101, as modified by Section 3(42) of ERISA.
“Platform” has the meaning specified in
Section 6.02.
“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 last day of the twenty-four (24) months immediately following the date on
which such Permitted Acquisition or conversion is consummated.
“Preferred Stock” as applied to the Capital Stock of
any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over
shares of Capital Stock of any other class of such Person.
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“Prime Rate” means the rate of interest last quoted by The Wall Street
Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected
Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by
the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Proposed Discounted Prepayment
Amount” has the meaning specified in
Section 2.05(d)(ii).
“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 Parent Borrower, (a) the
pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, that is factually supportable and is expected to have a continuing impact, in each case as determined on a basis consistent with Article 11 of
Regulation S-X of the Securities Act, as interpreted by the Securities and Exchange Commission and (b) additional good faith pro forma adjustments arising out of cost savings initiatives attributable to such transaction and additional costs
associated with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of the Parent Borrower and its Restricted Subsidiaries, in each case being given pro forma effect, that
(i) have been realized, (ii) subject to the limitations set forth in clause (1)(g) of the definition of Consolidated EBITDA, will be implemented following such transaction and are supportable and quantifiable and expected to be
implemented within the succeeding twenty-four (24) months and, in each case, including, but not limited to, (w) reduction in personnel expenses, (x) reduction of costs related to administrative functions, (y) reductions of costs
related to leased or owned properties and (z) reductions from the consolidation of operations and streamlining of corporate overhead taking into account, for purposes of determining such compliance, the historical financial statements of the
Acquired Entity or Business or Converted Restricted Subsidiary and the consolidated financial statements of the Parent Borrower and its Subsidiaries, assuming such Permitted Acquisition or conversion, and all other Permitted Acquisitions or
conversions that have been consummated during the period, and any Indebtedness or other liabilities repaid in connection therewith had been consummated and incurred or repaid at the beginning of such period (and assuming that such Indebtedness to be
incurred bears interest during any portion of the applicable measurement period prior to the relevant acquisition at the interest rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination);
provided that, so long as such actions are initiated 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 incurred during the entirety of
such Test Period.
“Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with
any test hereunder for an applicable period of measurement, 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 (as of the last date in the case of a balance sheet item) in such test: (a) income statement items (whether positive or negative) attributable to the property
or
63
Person subject to such Specified Transaction, (i) in the case of a Disposition of all or substantially all Equity Interests in any Restricted Subsidiary of the Parent Borrower or any
division, product line, or facility used for operations of the Parent Borrower or any of its Restricted 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 Parent Borrower or any of its 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, without limiting the application of the Pro Forma Adjustment pursuant to clause (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 Parent Borrower in good faith) (i)(x) directly attributable to such
transaction, (y) expected to have a continuing impact on the Parent Borrower and its Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.
“Proposed Discounted Prepayment Amount” has the meaning specified in Section 2.05(d)(ii).
“Public Company Costs” means, as to any Person, 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 and costs relating to compliance with the provisions of the
Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity, directors’’ compensation, fees and expense reimbursement, costs relating to
enhanced accounting functions and investor relations, shareholder meetings and reports to shareholders, directors’’ and officers’’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising solely by virtue of the listing of such Person’sPerson’s
equity securities on a national securities exchange or issuance of public debt securities.
“Public Lender” has the meaning specified in Section 6.02.
“QFC” has the meaning specified in Section 10.27.
“QFC Credit Support” has the meaning specified in Section 10.27.
“Qualified Equity Interests” means any Equity Interests of the Parent Borrower (or any direct or indirect parent of the
Parent Borrower), in each case, that are not Disqualified Equity Interests.
“Qualified Securitization Transaction”
means any Securitization Transaction; provided that (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) under such Securitization Transaction shall be (i) recourse to any member of the Consolidated
Group (other than any Securitization Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse, (ii) supported by Guarantee Obligations of any member of the Consolidated Group (other than any
Securitization Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse or (iii) secured (directly or indirectly, contingently or otherwise) by any Lien on any property of any member of the
Consolidated Group (other than any Securitization Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse, (b) such Securitization Transaction
64
(including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Consolidated Group and any applicable Securitization
Subsidiary, (c) all sales, conveyances or other transfers of Securitization Receivables and related assets to any Securitization Subsidiary are made at fair market value and (d) the financing terms, covenants, termination events and other
provisions thereof, including any Standard Securitization Obligations, shall be market terms, in each case as determined by the Parent Borrower in good faith. For the avoidance of doubt, the Securitization Transactions contemplated by that certain Receivables Financing Agreement, dated as of February 19, 2020 (as amended, restated, supplemented or otherwise modified through the date hereof), by and
among O&M Funding LLC, as borrower, Owens & Minor Medical, Inc., as servicer, the persons from time to time party thereto, as lenders, PNC Bank, National Association, as administrative agent, and PNC Capital Markets LLC, as structuring
agent,the Existing Qualified Securitization
constitute a “Qualified Securitization Transaction”.
“Qualifying Bridge Facility” means customary
bridge loans, so long as any loans, notes, securities or other Indebtedness for which such bridge loans are exchanged, replaced or converted satisfy (or will satisfy at the time of such exchange, replacement or conversion) any otherwise applicable
requirements.
“Qualifying Lenders” has the meaning specified in Section 2.05(d)(iv).
“Qualifying Loans” has the meaning specified in Section 2.05(d)(iv).
“Qualifying Term Loans” has the meaning specified in Section 2.14(b).
“Ratings” means a public corporate family rating from Moody’s, S&P and Fitch in respect of the Parent Borrower
after giving effect to the Transactions and the other transactions contemplated by this Agreement.
“RCF Cure Amount”
has the amount assigned to such term in the Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement (and shall also apply to any similar term in any refinancing or replacement thereof).
“Receivables”
means, as of any date of determination, the aggregate net book value of all accounts, accounts receivable, receivables, and obligations for payment created or arising from the sale of inventory or the rendering of services in the ordinary course of
business, whether evidenced by chattel paper, instruments or otherwise, owned by or owing to the Parent Borrower and its Domestic Subsidiaries on a consolidated basis after deducting allowances or reserves relating thereto, as shown on the books and
records of the Parent Borrower and its Domestic Subsidiaries (but excluding, in any event, without duplication, the aggregate net book value of all Receivables transferred to a Securitization Subsidiary or other Person in connection with a Qualified
Securitization Transaction).
“Receivables Related Assets” means (a) any rights arising under the documentation
governing or relating to any Securitization Receivables (including rights in respect of Liens securing such Securitization Receivables and other credit support in respect of such Securitization Receivables), (b) any proceeds of such
Securitization Receivables and any lockboxes or accounts in which such proceeds are deposited, (c) spread accounts and other similar accounts (and any amounts on deposit therein) established in connection with a Qualified Securitization
Transaction, (d) any warranty, indemnity, dilution and other intercompany claim arising out of the documentation evidencing any Qualified Securitization Transaction, and (e) other assets that are customarily transferred or in respect of
which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.
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“Refinancing” means the repayment in full, termination of all commitments
and release of all liens under Existing Apria Credit Agreement.
“Refinancing Term Commitment” means a commitment to
provide a Refinancing Term Loan.
“Refinancing Term Loans” means Incremental Term Loans and/or Incremental Equivalent
Debt that are designated by a Responsible Officer of the Parent Borrower as “Refinancing Term Loans” in a certificate of a Responsible Officer of the Parent Borrower delivered to the Administrative Agent on or prior to the date of
incurrence provided that (i) any Refinancing Term Loans shall not be in a principal amount that exceeds the amount of Term Loans so refinanced, except to the extent a different incurrence basket pursuant to Section 7.01 is utilized
plus an amount equal to any fees, expenses, commissions, underwriting discounts and premiums payable in connection with such Refinancing Term Loans, (ii) to the extent applicable, an Acceptable Intercreditor Agreement is entered into,
(iii) other than with respect to any Inside Maturity Debt and any Qualifying Bridge Facility, any
Refinancing Term Loans do not mature prior to the maturity date of or have a shorter Weighted Average Life to Maturity prior to the Terms Loans being refinanced, (iv) such Refinancing Term Loans have (a) the same guarantors as the Term
Loans being refinanced unless such guarantors substantially concurrently guarantee the Obligations and (b) the same borrowers as the Term Loans being refinanced, (v) such Refinancing Term Loans are secured by the same assets as the Term
Loans being refinanced unless such assets substantially concurrently secure the Obligations, (vi) the terms and conditions of such Refinancing Term Loans (excluding pricing and optional prepayment or redemption terms or covenants or other
provisions applicable only to periods after the Maturity Date of the Loans or Commitments being refinanced) shall reflect market terms and conditions at the time of incurrence or issuance (as reasonably determined by the Parent Borrower in good
faith) and (vii) such Refinancing Term Loans shall have the same lien priority or junior priority as the as the Terms Loans so refinanced or shall be unsecured.
“Register” has the meaning specified in Section 10.07(d).
“Reinvestment Period” has the meaning specified in Section 2.05(b)(ii)(B).
“Rejection Notice” has the meaning specified in Section 2.05(b)(v).
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying,
injection, migration or leaching on, into or through the Environment or into, from or through any building, structure or facility.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as
applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB, or, in each case, any successor thereto.
“Relevant Rate” means with respect to any Term Benchmark Borrowing, the Adjusted Term SOFR Rate.
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“Reportable Event” means, with respect to any Pension Plan, any of the
events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived.
“Repricing Transaction” means, with respect to the Initial Term B-1 Loans, other than in connection with a Change of
Control, Transformative Acquisition or Transformative Disposition (a) any prepayment or repayment of Initial Term B-1
Loans, with the proceeds of, or any conversion of Initial Term B-1
Loans, into, any new or replacement tranche of ““term
b””
loans secured by a Lien on the Collateral that ranks pari passu with the Liens securing the Initial Term B-1 Loans, bearing interest with an All-In Yield less than the All-In Yield
applicable to the Initial Term B-1 Loans, (b) any amendment (including pursuant to a replacement ““term b”” loan as contemplated by Section 10.01) to the Initial Term B-1 Loans which reduces the All-In Yield applicable to the Initial Term B-1 Loans, and (c) any mandatory assignment by a Non-Consenting Lender
pursuant to Section 3.06 in connection with an event described in clause (a) or (b); provided, that in the case of
clauseclauses
(a) and (b), the primary purpose of such prepayment, repayment or amendment is to reduce the All-In Yield as set forth above.
“Request for Credit Extension” means with respect to a Borrowing, conversion or continuation of Term Loans, a Committed
Loan Notice.
“Required Lenders” means, as of any date of determination, Lenders having more than 50.0% of the sum of
the Total Outstandings; provided that the portion of the Total Outstandings held or deemed held by any Defaulting Lender or Lenders that are Affiliated Lenders (other than Affiliated Debt Funds) shall be excluded for purposes of making a
determination of Required Lenders.
“Required Term A-1 Lenders” means, as of any date of determination, Term A-1 Term Lenders holding more than 50% of the
Total Outstandings with respect to the Term A-1 Term Facility on such date; provided that the portion of the
Total Outstandings with respect to the Term A-1 Term Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A-1 Lenders.
“Required Revolving Credit Lenders” has the meaning specified in the First Lien Revolving Credit Facility
Agreement.
“Required Term B-1 Lenders” means, as of
any date of determination, Term B-1 Term Lenders holding more than 50% of the Total Outstandings with respect to the Term B-1 Term Facility on such date; provided that the portion of the Total Outstandings with respect to the Term B-1 Term
Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term B-1 Lenders.
“Required Revolving Credit
Lenders” has the meaning specified in the Existing OMI Credit Agreement.
“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, president, vice president, chief financial
officer, treasurer, assistant treasurer, or other similar officer or director of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party and, solely for purposes of notices given
pursuant to Article II, any other officer of the
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applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or
pursuant to an agreement between the applicable Loan Party and 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, 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 Casualty Event” has the meaning specified in Section 2.05(b)(vii).
“Restricted Debt” means Indebtedness for borrowed money of any Loan Party that is (a) Subordinated Debt,
(b) unsecured or (c) secured by a Lien on the Collateral that is junior to the Liens securing the Loans.
“Restricted Debt Documents” means any agreement, indenture or instrument pursuant to which any Restricted Debt is
issued, in each case as amended, restated, supplemented or otherwise modified from time to time.
“Restricted Disposition” has the meaning specified in Section 2.05(b)(vii).
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect
to any Equity Interest in the Parent Borrower 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 holders of Equity Interests of the Parent Borrower.
“Restricted Subsidiary” means any Subsidiary of the Parent Borrower other than an Unrestricted Subsidiary.
“Retained Declined Proceeds” has the meaning specified in Section 2.05(b)(v).
“Revolving Credit Commitments” has the meaning specified in the Existing OMI CreditFirst
Lien Revolving Credit Facility Agreement.
“Revolving Credit
Loans””
has the meaning specified in the Existing OMI CreditFirst Lien Revolving Credit Facility Agreement.
“Revolving Credit Commitment” has the meaning specified in the Existing OMI Credit Agreement.
“Revolving Credit Loan” has the meaning specified in the Existing OMI Credit Agreement.
“S&P” means Standard & Poor’s Financial Services
LLC, a subsidiary of S&P Global Inc., and any successor thereto.
“Sale Leaseback” means any transaction or series
of related transactions pursuant to which the Parent Borrower or any of its Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of
such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed.
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“Sanctions Laws and Regulations” means (a) any sanctions or related
requirements imposed by the USA PATRIOT Act, the Executive Order No. 13224 of September 23, 2001,
entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.),
the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S.
Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, all as amended, or any
of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets
Control or the U.S. Department of State enacted in the United States on or after the date of this Agreement, or (b) any sanctions or related requirement imposed or administered by the European Union, the United Nations Security Council, or the
United Kingdom.
“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 that is entered into by and between
any Loan Party or any Restricted Subsidiary and any Hedge Bank; provided that, in no event shall any Swap Contract constitute a Secured Hedge Agreement hereunder to the extent that the obligations of any Loan Party or any other Restricted
Subsidiary arising under such Swap Contract constitute “Obligations” under and as defined in the Existing OMI CreditFirst Lien Revolving Credit Facility Agreement.
“Secured Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt that is
secured by a Lien on the Collateral as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Hedge Banks, the
Cash Management Banks, the Supplemental Administrative Agent and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.02.
“Securities Act” means the Securities Act of 1933.
“Securitization Receivables” has the meaning specified in the definition of “Securitization Transaction”.
“Securitization Subsidiary” means (a) O&M Funding LLC, a Delaware limited liability company, and (b) any
other wholly-owned Special Purpose Vehicle (other than, for the avoidance of doubt, any Loan Party) which engages in no activities other than those reasonably related to or in connection with the entering into of Securitization Transactions and
which is designated by the board of directors of the Parent Borrower (as provided below) as a Securitization Subsidiary; provided that no member of the Consolidated Group shall (i) provide credit support to such Securitization Subsidiary
other than Limited Originator Recourse, (ii) have any contract, agreement, arrangement or understanding with such Securitization Subsidiary other than on terms
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that are fair and reasonable and that are no less favorable to such member of the Consolidated Group than could be obtained from an unrelated Person (other than representations, warranties and
covenants (including those relating to servicing) entered into in the ordinary course of business in connection with a Qualified Securitization Transaction and intercompany notes relating to the sale of Securitization Receivables to such
Securitization Subsidiary and Limited Originator Recourse) or (iii) have any obligation to maintain or preserve such Securitization Subsidiary’s financial condition or to cause such Securitization Subsidiary to achieve certain levels of
operating results other than Limited Originator Recourse. Any such designation by the board of directors of the Parent Borrower (other than with respect to O&M Funding LLC) shall be evidenced to the Administrative Agent and each Lender by filing
with the Administrative Agent and each Lender a certified copy of the resolutions of the board of directors of the Parent Borrower giving effect to such designation.
“Securitization Transaction” means any financing transaction or series of financing transactions that have been or may be
entered into by a member of the Consolidated Group pursuant to which such member of the Consolidated Group may sell, convey or otherwise transfer to any Person (including, without limitation, a Securitization Subsidiary) or may grant a security
interest in any accounts receivable, notes receivable, rights to future lease payments or residuals or other similar rights to payment (the “Securitization Receivables”) (whether such Securitization Receivables are then existing
or arising in the future) of such member of the Consolidated Group, and any assets related thereto, including without limitation, all security interests in merchandise or services financed thereby, the proceeds of such Securitization Receivables,
and other assets which are customarily sold or in respect of which security interests are customarily granted in connection with securitization transactions involving such assets.
“Security Agreement” means, collectively,
the First Lienthat certain Security
Agreement executed
by, dated as of March 29, 2022, between, among others, the Loan Parties party thereto on the Closing Date substantially in the form of Exhibit Gas of the date thereof and the Collateral Agent as supplemented by any
Security Agreement Supplement executed and delivered pursuant to Section 6.10.
“Security Agreement
Supplement” means a supplement to any Security Agreement as contemplated by such Security Agreement.
“Senior
Notes” means, collectively, the 2014 Indenture Notes, the 2021 Indenture Notes and the 2022 Indenture Notes.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any
successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR
Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate
Day” has the meaning specified in the definition of “Daily Simple SOFR”.
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“Sold Entity or Business” has the meaning specified in the definition of
the term “Consolidated EBITDA.”
“Solvent” and “Solvency” mean, with respect to any
Person on any date of determination, that on such date (i) the fair value of the property of such Person is greater than the total amount of debts and liabilities, contingent, subordinated or otherwise, of such Person, (ii) the present
fair salable value of the assets of such Person is not less than the amount that will be required to pay the liability of such Person on its debts as they become absolute and matured, (iii) such Person will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as they become absolute and matured and (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s
property would constitute an unreasonably small capital; provided that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
“SPC” has the meaning specified in Section 10.07(h).
“Special Purpose Vehicle” means a trust, partnership, or other entity established by any member of the Consolidated Group
to implement a Qualified Securitization Transaction.
“SPC” has the meaning
specified in Section 10.07(h).
“Specified Communications” has the meaning specified in Section 10.02(g).
“Specified Event of Default” means an Event of Default pursuant to Sections 8.01(a), 8.01(f) or
8.01(g) (in the case of Section 8.01(f) or 8.01(g), with respect to the Parent Borrower or the other Borrowers).
“Specified Merger Agreement Representations” means the representations and warranties made by Apria with respect to Apria
and its Subsidiaries in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that Apria has (or its Affiliates have) the right (taking into account any applicable notice or cure provisions) to terminate its
and/or their obligations under the Merger Agreement or decline to consummate the Merger (in each case, in accordance with the terms thereof) as a result of a breach of such representations and warranties in the Merger Agreement.
“Specified Representations” means the representations and warranties of the Borrowers set forth in
Sections 5.01(a) (solely as it relates to Parent Borrower and the other Borrowers), 5.01(b)(ii), 5.01(d) (solely as it relates to the USA PATRIOT ACT), 5.02(a) (related to the entering into and performance of the
Loan Documents and the incurrence of the extensions of credit thereunder), 5.02(b)(i) (related to the entering into and performance of the Loan Documents and the incurrence of the extensions of credit thereunder), 5.04, 5.12,
5.15, 5.18(a) (solely with respect to the second sentence thereof) and 5.18(c).
“Specified
Transaction” means any Investment, incurrence or repayment of Indebtedness, Restricted Payment, Subsidiary designation or Incremental Term Commitments or Extended Term Credit Commitments that by the terms of this Agreement requires such
test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided that any increase in the Term Commitment above the Term Commitments in effect on the Closing Date, for purposes of this
“Specified Transaction” definition, shall be deemed to be fully drawn; provided, further, that at the Parent Borrower’s sole election, any such Specified Transaction (other than a Restricted Payment) having an
aggregate value of less than $30,000,000 shall not be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect.”
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“Standard Securitization Obligations” means representations, warranties,
covenants, indemnities and other obligations entered into by any member of the Consolidated Group (other than any Securitization Subsidiary) which are reasonably customary in Securitization Transactions.
“Subordinated Debt” means Indebtedness incurred by a Loan Party that is subordinated in right of payment to the prior
payment of all Obligations of such Loan Party under the Loan Documents.
“Subordinated Debt Documents” means any
agreement, indenture or instrument pursuant to which any Subordinated Debt is issued, in each case as amended to the extent permitted under the Loan Documents.
“Subsidiary” of a Person means a corporation, company, partnership, joint venture, limited liability company or other
business entity of which 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, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Borrower.
“Subsidiary Guarantor” means, collectively, the Subsidiaries of the Parent Borrower that are Guarantors.
“Successor Borrower” has the meaning specified in Section 7.04(d).
“Supermajority Lenders” means, as of any date of determination, Lenders having more than 66-2/3% of the sum of the Total
Outstandings; provided that the portion of the Total Outstandings held or deemed held by any Defaulting Lender
or Lenders that are Affiliated Lenders (other than Affiliated Debt Funds) shall be excluded for purposes of making a determination of Supermajority Lenders.
“Supplemental Administrative Agent” has the meaning specified in Section 9.13(a) and “Supplemental
Administrative Agents” shall have the corresponding meaning.
“Supported QFC” has the meaning specified in
Section 10.27.
“Survey” means a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by
a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to the Administrative Agent, the
Collateral Agent and the Title Company and the applicable Loan Party, (iii) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of
such survey, (iv) sufficient for the Title Company to remove all standard survey exceptions from the Mortgage Policy relating to such Mortgaged Property and issue the endorsements of the type required by paragraph (f) of the definition of
Collateral and Guarantee Requirement and (v) otherwise reasonably acceptable to the Administrative Agent.
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“Surviving Indebtedness” means Indebtedness of the Parent Borrower or any
of its Subsidiaries outstanding immediately after giving effect to the Refinancingthe Amendment No. 2 Effective Date.
“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 any obligation of any Guarantor to pay or perform under any agreement, contract, or transaction
that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“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 by the Hedge Bank (or the Parent Borrower, if no Hedge Bank is party to such Swap Contract) in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under
similar arrangements by the Hedge Bank (or the Parent Borrower, if no Hedge Bank is party to such Swap Contract).
“Taxes” means all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings (including
backup withholding) or other charges imposed by any Governmental Authorities, including additions to tax, penalties and interest with respect thereto.
“Term A Loans” means the Term A-1 Term Loans and any other Classes of Term Loans with average annual amortization payments
in an amount equal to or greater than 2.50% of the original principal amount thereof.
“Term A Event of Default” means
a Term A Loan Payment Event of Default, a Financial Covenant Event of Default and/or any other Event of Default that arises from any non-compliance with any Term A Loan Specific Provision.
“Term A Loan Payment Event of Default” means an Event of Default pursuant to Section 8.01(a) with respect to
payment obligations solely relating to the Term A-1 Term Facility.
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“Term A Loan Specific Provision”means any financial covenant and cure provision with respect thereto (including, without
limitation, the Financial Covenant and the cure provisions in Section 8.05), representation, affirmative covenant, negative covenant, event of default or any other provision or definition, in each case under any Loan Document, that applies solely to the Term A-1 Term Facility (or that also applies to any other Loan solely as a result
of the acceleration of the Term A-1 Term Facility) or, by its terms, applies for the sole benefit of the Term A-1 Lenders (including, without limitation, clause (ii) of the definition of “Applicable Rate”, the pricing grid therein
and the last two paragraphs of the such definition, the last proviso of each of clauses (g), (r) and (p) of the definition of “Consolidated EBITDA”, the proviso in clause (4) of the definition of “Consolidated Net
Income”, the last proviso of clause (19) of the definition of “Consolidated Net Income”,
Section 7.11, the last proviso of
Section 8.01(e), and Section 8.05).
“Term A-1 Term Borrowing” means a borrowing consisting of simultaneous Term A-1 Term Loans of the same Type and, in the
case of Term Benchmark Loans, having the same Interest Period made by each of the Term A-1 Term Lenders pursuant to Section 2.01(b).
“Term A-1 Term Facility” means, at any time on or after the Closing Date, the aggregate principal amount of the Term A-1
Term Loans outstanding at such time (which on the Closing
DateAmendment No. 2 Effective Date, immediately after giving effect to the Amendment No. 2
Transactions, is $500,000,0000.00).
“Term A-1 Term Lender” means, at any time on or after the Closing Date, any Lender that holds Term A-1 Term Loans at such
time.
“Term A-1 Term Loan” means, at any time on or after the Closing Date, a loan made by a Term A-1 Term Lender
under the Term A-1 Term Facility, including the Initial Term A-1 Term Loan and any Incremental Term Loan made as a Term A-1 Term Loan.
“Term A-1 Term Note” means a promissory note of any Borrower or Borrowers payable to any Term A-1 Lender or its registered
assigns, in substantially the form of Exhibit B-2 hereto with appropriate insertions, evidencing the aggregate Indebtedness of such Borrower or Borrowers to such Term A-1 Term Lender resulting from any Class of Term A-1 Loans made by such Lender.
“Term B-1 Term Borrowing” means a borrowing consisting of simultaneous Term B-1 Term Loans of the same Type and, in
the case of Term Benchmark Loans, having the same Interest Period made by each of the Term B-1 Term Lenders pursuant to Section 2.01(a).
“Term B-1 Term Facility” means, at any time on or after the Closing Date the aggregate principal amount of the Term B-1
Term Loans outstanding at such time (which on the Closing Date)
is was $600,000,000).
“Term B-1 Term Lender” means, at any time on or after Closing Date, any Lender that holds Term B-1 Term Loans at such time.
“Term B-1 Term Loan” means, at any time on or after the Closing Date, a loan made or converted into by a Term B-1 Term
Lender under the Term B-1 Term Facility, including the Initial Term B-1 Term Loan and any Incremental Term Loan made as a Term B-1 Term Loan.
“Term B-1 Term
Note” means a promissory note of any Borrower or Borrowers payable to any Term B-1 Term Lender or its registered assigns, in substantially the form of Exhibit B-1 hereto with appropriate insertions, evidencing the aggregate Indebtedness of such Borrower or Borrowers to such Term B-1 Term Lender
resulting from any Class of Term B-1 Loans made by such Term B-1 Lender.
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“Term Benchmark” when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate.
“Term Borrowing” means a Borrowing in respect of a Class of Term Loans.
“Term Commitments” means an Initial Term A-1 Commitment, an Initial Term B-1 Commitment, or a commitment in respect of any Incremental Term Loans or Extended
Term Loans or any combination thereof, as the context may require.
“Term Facility” means, at any time, the Term
A-1 Term Facility and the Term B-1 Facility.
“Term Lender” means, at any time, any Lender that has a Term Loan or a
Term Commitment at such time.
“Term Loans” means the Term A-1 Term Loans, Term B-1 Term Loans, the Incremental Term
Loans and the Extended Term Loans, as context may require.
“Term SOFR Determination Day” has the meaning assigned to
it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate”means, with respect to any Term Benchmark
Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two (2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable
to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference
Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Administrative Agent as the
forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a
Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S.
Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR
Determination Day.
“Test Period” means, at any date of determination, the most recently completed four consecutive
fiscal quarters of the Parent Borrower ending on or prior to such date for which financial statements have been or are required to be delivered pursuant to Section 4.01, Section 6.01(a) or 6.01(b).
“Threshold Amount” means
$50,000,00025,000,000
.
“Title Company” means any title insurance company as shall be retained by the Parent Borrower to issue the Mortgage
Policies and reasonably acceptable to the Administrative Agent.
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“Total Leverage Ratio” means, with respect to any Test Period, the ratio
of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for such Test Period.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans.
“Transaction Expenses” means any fees or expenses incurred or paid by Parent Borrower, the Borrowers, or any Restricted
Subsidiary in connection with the Transactions or the Amendment No.2 Transactions and the transactions contemplated in connection therewith.
“Transactions” means, collectively, as applicable, (a) the Merger and other related transactions contemplated by the
Merger Agreement, (b) the funding, of the Initial Term Borrowing hereunder, (c) the execution and delivery of the Loan Documents, (d) the payment of Transaction Expenses, (e) the issuance of the 2022 Indenture Notes and
(f) the amendment to the Existing OMI Credit Agreement (as defined in this Agreement prior to giving effect to
Amendment No. 2).
“Transaction Expenses” means
any fees or expenses incurred or paid by Parent Borrower, the Borrowers, or any Restricted Subsidiary in connection with the Transaction and the transactions contemplated in connection therewith.
“Transformative Acquisition” means any acquisition or Investment by
the Borrowers or any Restricted Subsidiary that is either (a) not permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of the Loan Documents
immediately prior to the consummation of such acquisition or Investment, would not provide the Borrowers and their Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of their combined
operations following such consummation, as determined by the Parent Borrower acting in good faith.
“Transformative
Disposition” means any Disposition by the Borrowers or any Restricted Subsidiary that (a) is not permitted by the terms of the Loan Documents immediately prior to the consummation of such disposition or (b) if permitted by the
terms of the Loan Documents immediately prior to the consummation of such Disposition, would not provide the Borrowers and their Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of
their combined operations following such consummation, as determined by the Parent Borrower acting in good faith.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Term Benchmark Loan.
“Ultimate Parent Entity” means any direct or indirect parent of the Parent Borrower.
“UK Financial Institution” means any BRRD Undertaking (as such term
is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United
Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for
the resolution of any UK Financial Institution.
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“Ultimate Parent Entity” means any direct or indirect parent of the Parent Borrower.
“Unadjusted Benchmark Replacement” means the applicable Benchmark
Replacement excluding the related Benchmark Replacement Adjustment.
“Unaudited Parent Borrower Financial Statements”
means an unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of income of the Parent Borrower and its Subsidiaries for the twelve-month period ending on the last day of the most recently completed
four-fiscal quarter period ended December 31, 2021, prepared after giving effect to the Transactions as if the Transactions had occurred on such date (in the case of such pro forma balance sheet) or on the first day of such period (in the case
of such pro forma statement of income), as applicable, which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting.
“Undisclosed Administration” means in relation to a Lender or its parent company the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction
supervision if applicable law requires that such appointment is not to be publicly disclosed.
“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” has the meaning specified in Section
3.01(f)(ii)(C).
“Unrestricted Incremental Amount “ means, with respect to the incurrence or issuance of Incremental Term Commitments or
Incremental Equivalent Debt, an amount not to exceed the greater of (i) $660,000,000 and (ii) 100.0% of Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries for the most recently ended Test Period (calculated on a Pro
Forma Basis), in the aggregate for all such incurrences or issuances after the Closing Date.
“Unrestricted Subsidiary” means
(i) each Subsidiary of the Parent Borrower listed on Schedule
1.01B[reserved], (ii) any Subsidiary of the
Parent Borrower designated by the Parent Borrower as an Unrestricted Subsidiary pursuant to Section 6.13 subsequent to the date
hereofAmendment No. 2 Effective Date or
pursuant to the Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement or the 2026 First Lien Indenture and
(iii) any Subsidiary of an Unrestricted Subsidiary. As of the Amendment No. 2 Effective Date, no
Subsidiary of the Parent Borrower is 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 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a
day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
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“U.S. Special Resolution Regimes” has the meaning specified in Section
10.27.
“Voluntary Prepayment Amount” has the meaning specified in Section 2.14(a).
“Voting Stock” means, with respect to any Person, the voting stock or other securities of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or Persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a
contingency.
“Waived Proceeds” has the meaning specified in Amendment No. 2.
“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, the effects of any
prepayments or amortization made on such Indebtedness prior to the date of such determination will 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.
“Withdrawal Liability” means the liability of a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and
Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member
Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce,
modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other
person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or
ancillary to any of those powers.
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.
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(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.
(i) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.
(ii) The term “including” is by way of example and not limitation.
(iii) 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.
(c) 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.”
(d) 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.
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 Audited Parent Borrower
Financial Statements, except as otherwise specifically prescribed herein.
(b) Notwithstanding anything to the contrary herein, for
purposes of determining compliance with any test contained in this Agreement with respect to any period during which any Specified Transaction occurs, the Total Leverage Ratio, the First Lien Leverage Ratio, the Secured 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.
(c) Where reference is made to “the Parent Borrower and its Restricted Subsidiaries on a consolidated basis” or similar language,
such consolidation shall not include any Subsidiaries of the Parent Borrower other than Restricted Subsidiaries.
Section 1.04. Rounding Rounding. Any financial
ratios 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 Organization 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
79
other modifications are permitted by any Loan Document; (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law; and (c) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns.
Section 1.06. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight
or standard, as applicable).
Section 1.07. 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.
[Reserved]..
Section 1.09. Certain Calculations and Tests.
.
(a) Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating any applicable ratio or
determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom) in connection
with a Specified Transaction undertaken in connection with the consummation of a Limited Condition Transaction, the date of determination of such ratio or other applicable covenant and determination of whether any Default or Event of Default has
occurred, is continuing or would result therefrom or other applicable covenant, shall, at the option of the Parent Borrower (the Parent Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an
“LCT Election”), be deemed to be either (A) the date that the definitive agreements for such Limited Condition Transaction are entered into or (B) solely in connection with an acquisition to which the United Kingdom City
Code on Takeovers and Mergers (the “City Code”) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target company is made in compliance with the City Code (any
such date, the “LCT Test Date”) and if, after such ratios and other provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other Specified Transactions to be entered into in
connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the four consecutive fiscal quarter period being used to calculate such financial ratio ending prior to the LCT
Test Date, the Parent Borrower could have taken such action on the relevant LCT Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with; provided that, notwithstanding
anything to the contrary herein, at the time of a Limited Condition Transaction no Specified Event of Default shall have occurred and be continuing or would result therefrom. For the avoidance of doubt, (x) if any of such ratios are exceeded as
a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA of the Parent Borrower) at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed
to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation
of such Limited Condition Transaction or related Specified Transactions. If the Parent Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability
with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is
80
consummated, or the date that the definitive agreement for, or “Rule 2.7 announcement” in respect of, as applicable, such Limited Condition Transaction is terminated or expires
without consummation of such Limited Condition Transaction, any such ratio or basket 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.
(b) [Reserved.].
(c) Notwithstanding anything to the contrary herein, for purposes of the covenants described in Article VII, if any Indebtedness, Lien,
Investment, Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt (or a portion thereof) would be permitted pursuant to one or more provisions described therein, the Parent Borrower may divide and classify such Indebtedness, Liens, Investments,
Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt (or a portion thereof) in any manner that complies with the covenants set forth in Article VII, and may later divide and reclassify any such Indebtedness, Lien, Investment,
Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt so long as the Indebtedness, Lien, Investment, Disposition, Restricted Payment or repayment of
SubordinatedRestricted
Debt (as so redivided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such redivision or reclassification; provided that any
such divisions, classifications, redivisions and/or reclassifications shall only be permitted within a specific type of covenant, and not, for the avoidance of doubt, across different types of covenants.
(d) Any
prior utilization by the Parent Borrower and its Subsidiaries of any basket hereunder prior to the Amendment No. 2 Effective Date shall be reset to zero as of the Amendment No. 2 Effective Date such that, as of the Amendment No. 2
Effective Date, each basket hereunder shall be fully available to the Parent Borrower and its Subsidiaries as if such basket had not been previously utilized hereunder.
Section 1.10. [Reserved]. .
Section 1.11.
[Reserved]..
Section 1.12. Divisions. .For all purposes under the Loan Documents, in connection with any division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or
liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person and (b) if any new Person comes into existence,
such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.13. Interest Rates; Benchmark
Notification.
.
The interest rate on a Loan denominated in dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in
the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 3.03(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or
accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor
rate thereto, or replacement rate
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thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or
economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related
entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each
case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the
definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or
consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
ARTICLE II
THE
COMMITMENTS AND CREDIT EXTENSIONS
Section 2.01. The Loans. .
(a) Term B-1 Term Loans. Each Initial Term B-1 Lender severally agrees
to make to the Borrowers a single loan in Dollars in a principal amount equal to such Initial Term B-1 Lender’s Initial Term B-1 Commitment on the Closing Date. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may
not be reborrowed. Initial Term B-1 Loans may be Base Rate Loans or Term Benchmark Loans, as further provided herein.
(b) Term A-1 Term Loans. Each Initial Term A-1 Lender severally agrees to make to the Borrowers a single loan in Dollars
in a principal amount equal to such Initial Term A-1 Lender’s Initial Term A-1 Commitment on the Closing Date. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Initial Term A-1 Loans may be
Base Rate Loans or Term Benchmark Loans, as further provided herein.
Section 2.02. Borrowings, Conversions and
Continuations of Loans. .
(a) Each Term Borrowing, each conversion of Loans from one Type to the other, and each continuation of Term Benchmark Loans shall be made upon
the Parent Borrower’s irrevocable notice, to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent substantially in the form attached hereto as Exhibit A or any other
form that 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), (i) in the case of a Term Benchmark Loan (other than any
Term Benchmark Loan requested to be made on the Closing Date for which such notice may be provided not later than 1:00 p.m., New York City time, two (2) Business Days prior to the Closing Date), not later than 1:00 p.m., New York City
time, three (3) Business Days before the date of the proposed Borrowing or (ii) in the case of a Base Rate Loan, not later than 1:00 p.m., New York City time, on the Business Day of the proposed Borrowing. Each telephonic notice by
the Borrowers pursuant to this Section 2.02(a) must be confirmed promptly by hand delivery, telecopy or electronic transmission to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Parent Borrower. Each Borrowing of, conversion to or continuation of Term Benchmark Loans shall be in a principal amount of $1,000,000 or a whole multiple of
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$100,000 in excess thereof. Each Borrowing of or conversion to Base Rate Loans shall be a minimum of $500,000 (and any amount in excess thereof shall be an integral multiple of $100,000). Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrowers are requesting a Term A-1 Term Borrowing, a Term B-1 Term Borrowing, a conversion of Loans from one Type to the other, or a continuation of Term
Benchmark Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the Class, currency (which shall be Dollars for the Initial Term Loans) and principal amount
of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the location
and number of the Borrowers’ accounts to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(b). If the Borrowers fail to specify a Type of Loan in a Committed Loan Notice or fail to give a
timely notice requesting a conversion or continuation, then the applicable Loans shall be made or continued as, or converted to Base Rate Loans. Any such automatic conversion or continuation shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Term Benchmark Loans. If the Borrowers request a Borrowing of, conversion to, or continuation of Term Benchmark Loans in any such Committed Loan Notice, but fail to specify an Interest Period, it
will be deemed to have specified an Interest Period of one (1) month. For the avoidance of doubt, the Borrowers and Lenders acknowledge and agree that any conversion or continuation of an existing Loan shall be deemed to be a continuation of
that Loan with a converted interest rate methodology and not a new Loan.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Appropriate Lender of the amount of its Applicable Percentage of the applicable Class of the applicable Term A-1 Term Loans or Term B-1 Term Loans covered by the Committed Loan Notice, and if no timely
notice of a conversion or continuation is provided by the Parent Borrower, the Administrative Agent shall notify each Appropriate Lender of the details of any automatic conversion to Base Rate Loans or continuation described in
Section 2.02(a). Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the Credit Extensions on the Closing Date, Section 4.01), the Administrative Agent shall, not
later than 3:00 p.m. on the borrowing date specified in such Committed Loan Notice, make all funds so received available to the Borrowers in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrowers
on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrowers.
(c) Except as otherwise provided herein, a Term Benchmark Loan may be continued or converted only on the last day of an Interest Period for
such Term Benchmark Loan unless the Borrowers pay the amount due, if any, under Section 3.04 in connection therewith. During the existence of an Event of Default, the Administrative Agent or the Required Lenders (or, solely with respect to the Term A-1 Facility or any Term A Event of Default, the Administrative Agent at the request of the Required Term A-1 Lenders) may require that (i) no Loans may be converted to or continued as Term Benchmark Loans and (ii) unless repaid, each Term Benchmark Loan shall be converted to a Base Rate Loan at the end of the Interest
Period applicable thereto.
(d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate
applicable to any Interest Period for Term Benchmark Loans upon determination of such interest rate. The determination of the Term Benchmark by the Administrative Agent shall be conclusive in the absence of manifest error.
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(e) Anything in clauses (a) to (d) above to the contrary
notwithstanding, after giving effect to all Term Borrowings, all conversions of Term Loans from one Type to the other, and all continuations of Term Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect at any
time for all Borrowings of Term Benchmark Loans.
(f) Unless the Administrative Agent shall have received notice from a Lender prior to
the date of any Borrowing, or, in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m., New York City time, on the date of such Borrowing, that such Lender will not make available to the Administrative Agent such Lender’s
Applicable Percentage of such Borrowing, the Administrative Agent may assume that such Lender has made such Applicable Percentage available to the Administrative Agent on the date of such Borrowing in accordance with clause (b) above,
and the Administrative Agent may, in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not
have made such portion available to the Administrative Agent, each of such Lender and the Borrowers severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrowers until the date such amount is repaid to the Administrative Agent at (a) in the case of the Borrowers, the interest rate applicable at the time to the Loans comprising such Borrowing and
(b) in the case of such Lender, the greater of (x) the Federal Funds Effective Rate and (y) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in accordance with the foregoing. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 2.02(f)
shall be conclusive in the absence of demonstrable error. If the Borrowers and such Lender shall both pay all or any portion of the principal amount in respect of such Borrowing or interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrowers the amount of such Borrowing or interest paid by the Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the
amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the
Administrative Agent.
Section 2.03.
[Reserved]. .
Section 2.04. [Reserved]..
Section 2.05. Prepayments. .
(a) Optional Prepayments. (i) The Borrowers may, upon notice to the Administrative Agent by the Parent Borrower, at any time or
from time to time voluntarily prepay any Borrowing of any Class in whole or in part without premium or penalty (except as set forth in Section 2.05(a)(iv)); provided that (1) such notice must be received by the Administrative
Agent not later than (A) 12:00 p.m., New York City time, three (3) Business Days prior to any date of prepayment of Term Benchmark Loans and (B) 1:00 p.m., New York City time, one (1) Business Day prior to the date of
prepayment of Base Rate Loans, (2) any prepayment of Term Benchmark Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof or, in each case, the entire principal amount thereof then outstanding and
(3) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, 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
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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 Applicable Percentage of such
prepayment. If such notice is given by the Borrowers, the Borrowers 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 Term Benchmark Loan shall be
accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.04. Each prepayment of the Loans pursuant to this Section 2.05(a) shall be applied to the installments thereof
as directed by the Borrowers (it being understood and agreed that if the Borrowers do not so direct at the time of such prepayment, such prepayment shall be applied ratably among the Term Facilities and to the scheduled repayments of Term Loans of
the relevant Class under Section 2.07 in direct order of maturity) and shall be paid to the Appropriate Lenders in accordance with their respective Applicable Percentages.
(ii) [Reserved].
(iii) Notwithstanding anything to the contrary contained in this Agreement, the Borrowers may rescind any notice of prepayment
under Section 2.05(a) if such prepayment would have resulted from a refinancing of all of the Term Facility, which refinancing shall not be consummated or shall otherwise be delayed.
(iv) In the event that the Borrowers (x) make any prepayment of Initial Term B-1 Term Loans in connection with any
Repricing Transaction or (y) effects any amendment of this Agreement resulting in a Repricing Transaction with respect to Initial Term B-1 Term Loans, in each case prior to the twelve (12) month anniversary of the Closing Date, the
Borrowers shall pay a premium in an amount equal to 1.00% of (A) in the case of clause (x), the amount of the Initial Term B-1 Loan being prepaid or (B) in the case of clause (y), the aggregate amount of the applicable
Initial Term B-1 Loans outstanding immediately prior to such amendment, in each case to the Administrative Agent, for the ratable account of each of the Initial Term B-1 Lenders.
(b) Mandatory Prepayments. (i) Commencing with the first full fiscal year of the Parent Borrower ending after the Closing Date,
within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrowers shall, if the
Borrowers’ Excess Cash Flow is greater than $50,000,000 (the “Excess Cash Flow Prepayment Threshold”), cause to be prepaid an aggregate principal amount of Term B-1 Term Loans (such aggregate amount, the “Excess
Cash Flow Prepayment Amount”) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of the Excess Cash Flow Prepayment
Threshold, if any, for the fiscal year covered by such financial statements (commencing with the first full fiscal year ending after the Closing Date), minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt
buybacks made by the Parent Borrower or any Restricted Subsidiary in an amount equal to the amount actually paid in respect thereof) of Term Loans during such fiscal year and, at the Parent Borrower’s election, all such voluntary prepayments
made after the end of such fiscal year but prior to the time that the prepayment required by this clause (b)(1) is made, (2) all voluntary prepayment of Revolving Credit Loans during such fiscal year to the extent the Revolving Credit
Commitments are permanently reduced by the amount of such payments, (3) without duplication of amounts deducted pursuant to clause (6) below in prior fiscal years, the amount of Capital Expenditures or acquisitions made in cash or
committed to be made in cash during such period, (4) without duplication of amounts deducted pursuant to clause (6) below in prior periods, the amount of Investments and Permitted Acquisitions made in cash or committed to be made in
cash during such period pursuant to Section 7.03
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(other than Investments amongst the Parent Borrower and its Restricted Subsidiaries or Investments made pursuant to Section 7.03(a)), (5) without duplication of amounts deducted
pursuant to clause (6) below in prior periods, the amount of Restricted Payments paid in cash during such fiscal year pursuant to Section 7.06 (other than Section 7.06(a) (solely in respect of amounts paid to the
Parent Borrower or Restricted Subsidiary), (b), (d), (e) and (h)) and (6) without duplication of amounts deducted in prior periods, the aggregate consideration required to be paid in cash by the Parent Borrower
or any of its Restricted subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or acquisitions to be
consummated or made during the period of four consecutive fiscal quarters of the Parent Borrower following the end of such period (provided that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures
or Investments 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) (any transaction referred to in this clause (B) made following the fiscal year end but prior to the making of such prepayment under this clause (b)(i), an “After Year-End Transaction”), in the case of
each of the immediately preceding clauses (1) through (6), to the extent such prepayments are not funded with the proceeds of long-term Indebtedness (other than revolving loans), or any Cure Amount or any RCF Cure Amount; provided that (x) the ECF Percentage shall be reduced to 25% if the
First Lien Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.00:1.00 and greater than or equal to 2.50:1.00 and (z) the ECF Percentage shall be reduced to 0% if the First
Lien Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 2.50:1.00; provided, further, that (I) to the extent so elected by the Parent Borrower, (i) the
First Lien Leverage Ratio shall be recalculated giving Pro Forma Effect to (x) the amount of such prepayment pursuant to this clause (b)(i) and (y) following the consummation of any After Year-End Transaction, such After Year-End
Transaction as if such prepayment and/or transaction was consummated during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference
to such recalculated First Lien Leverage Ratio and (ii) such After Year-End Transaction shall not be applied in duplicate to the calculation of the amount of Excess Cash Flow for purposes of any subsequent Excess Cash Flow prepayment, (II)
[reserved], (III) to the extent any reduction pursuant to clauses (1) or (2) above reduce the Excess Cash Flow Prepayment Amount below the Excess Cash Flow Prepayment Threshold, such excess amounts for such fiscal year shall,
at the Parent Borrower’s sole option, be carried over to the immediately succeeding fiscal year and shall reduce any Excess Cash Flow Prepayment Amount on a dollar for dollar basis for such fiscal year and (IV) if at the time that any such
prepayment would be required, the Parent Borrower or any of its Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with the Liens securing the Term Loans pursuant
to the terms of the documentation governing such Indebtedness with the Excess Cash Flow Prepayment Amount(including, for the avoidance of doubt, the 2026 First Lien Indenture and the First Lien Revolving Credit Facility
Agreement) (such Indebtedness required to be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”) with the Excess Cash Flow Prepayment Amount, then the Parent Borrower
may apply such Excess Cash Flow Prepayment Amount 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) 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 (provided that
the portion of such Excess Cash Flow Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such Excess Cash Flow Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to
the terms thereof, and the remaining amount, if any, of such Excess Cash Flow Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof).
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(ii) (A) Subject to the Reinvestment Period, if following the Closing Date (x) the
Parent Borrower or any Restricted Subsidiary Disposes of any property or assets pursuant to Section 7.05(l) or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Parent Borrower or
such Restricted Subsidiary of Net Cash Proceeds, the Borrowers shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Term Loans equal to 100% (such percentage, the
“Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion
of such Net Cash Proceeds that the Borrowers shall have, on or prior to such date, given written notice to the Administrative Agent of their intent to reinvest in accordance with the Reinvestment Period or (II) until the aggregate amount of Net Cash
Proceeds not reinvested in accordance with the Reinvestment Period within the time periods set forth therein and not previously applied to such a prepayment exceeds $25,000,000 for any single Disposition or series of related Dispositions or
$50,000,000 in the aggregate during such fiscal year (and thereafter only amounts in excess of such thresholds shall be required to be prepaid) and (2) if at the time that any such prepayment would be required, the Parent Borrower or any of its
Restricted Subsidiaries is required to offer to repurchase or prepay any Other Applicable Indebtedness, then the Parent Borrower may apply such Net Cash Proceeds 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) 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)(A) shall be reduced accordingly by the amount
offered to repurchase or prepay Other Applicable Indebtedness (provided that the portion of such Net Cash Proceeds allocated to be offered to the Other Applicable Indebtedness shall not exceed the
amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the
terms hereof); provided, further that the Asset Percentage shall be reduced to (i) 50% if the First Lien Leverage Ratio for the most recently ended Test Period on a Pro Forma Basis is greater than or equal to 2.50:1.00 but less
than 3.00:1.00 or (ii) 0% if the First Lien Leverage Ratio for the most recently ended Test Period on a Pro Forma Basis is less than
2.50:1.00.; provided, further that any reduction in revolving commitments (whether or not coupled with a mandatory prepayment) shall be deemed a prepayment (or an amount offered to repurchase or prepay) for purposes of this
Section 2.05(b)(ii)(A).
(B) With respect to any Net Cash Proceeds
realized or received with respect to any Disposition (other than any Disposition specifically excluded from the application of Section 2.05(b)(ii)(A)) or any Casualty Event, at the option of the Parent Borrower, the applicable Borrower
or any Restricted Subsidiary may reinvest an amount equal to all or any portion of such Net Cash Proceeds in assets useful for its business (other than working capital, except for short-term capital assets but including Permitted Acquisitions and
Capital Expenditures) within
(x)
fivethree hundred
fortysixty
(540360
) days following receipt of such Net Cash Proceeds or (y) if the Parent Borrower or any Restricted Subsidiary enters into a commitment to reinvest such Net Cash Proceeds (such period, the
“Reinvestment Period”) within
fivethree
hundred
fortysixty
(540360
) days following receipt thereof, one hundred eighty (180) days after the fivethree hundred fortysixty
(540360
) days period that follows receipt of such Net Cash Proceeds; provided that if any Net Cash Proceeds are not so reinvested by the deadline specified in clause (x) or
(y) above, as applicable, or if any such Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to the Asset Percentage of any such Net
Cash
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Proceeds shall be applied, in accordance with Section 2.05(b)(ii)(C), to the prepayment of the Term Loans as set forth in this Section 2.05; provided, further, that no proceeds realized in a single transaction shall constitute Net Cash Proceeds unless the aggregate Net Cash
Proceeds shall exceed $25,000,000 and in a series of related transactions shall constitute Net Cash Proceeds unless the aggregate Net Cash Proceeds shall exceed $50,000,000 in any fiscal year and thereafter only net cash proceeds in excess of such
amount shall constitute Net Cash Proceeds under this clause 2.05(b)(ii)(B)..
(C) On each occasion that the Borrowers must make a prepayment of the Term Loans
pursuant to this Section 2.05(b)(ii), the Borrowers shall, within five (5) Business Days after the date of realization or receipt of such Net Cash Proceeds in the minimum amount specified above (for the avoidance of doubt, subject to the applicable deductions or reductions set forth above) (or, in the case of prepayments required pursuant to Section 2.05(b)(ii)(B), within five (5) Business Days of the deadline specified in clause (x) or (y) thereof, as
applicable, or of the date the Borrowers reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested, as the case may be), make a prepayment, in accordance with Section 2.05(b)(v) below, of
the principal amount of Term Loans in an amount equal to the Asset Percentage of such Net Cash Proceeds (for the
avoidance of doubt, subject to the applicable deductions or reductions set forth above) realized or received.
(iii) If, following the Closing Date, the Parent Borrower or any Restricted Subsidiary incurs or issues any (A) Refinancing Term Loans,
(B) Indebtedness pursuant to Section 7.01(u) or (C) Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.01, the Borrowers shall cause to be prepaid an aggregate principal amount of
Term Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iv) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to the installments thereof in direct order
of maturity pursuant to Section 2.07 following the applicable prepayment event; provided that any mandatory prepayment pursuant to Section 2.05(b) shall be applied on a pro rata basis to the Term A-1 Term Facility and the Term B-1 Term Facility (other than in respect of mandatory prepayments pursuant to
Section 2.05(b)(i), which shall be applied solely to the Term B-1 Term Facility)
and, except to the extent a lesser prepayment is required pursuant to the applicable Incremental Facility Amendment or Extension Offer with respect to any applicable Class of Incremental Term Loans or Extended Term Loans, any Incremental Term Loans
and Extended Term Loans; provided further, any such prepayment required pursuant to Section 2.05(b)(ii)(A) shall be applied to any Class of Term
A-1 Loans or Term B-1 Loans, as determined by the Parent Borrower in its sole discretion. Each such
prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages subject to clause (v) of this Section 2.05(b).
(v) The Borrowers shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made
pursuant to clauses (i), (ii), and (iii) of this Section 2.05(b) prior to 1:00 p.m. at least five (5) Business Days (or such lesser number of Business Days as shall be acceptable to the Administrative
Agent) 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 Borrowers’ prepayment notice and of such Appropriate Lender’s Applicable Percentage of the prepayment. Each Appropriate Lender may reject all, but not less than all, of its Applicable Percentage of any
mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (i) or (ii) of this
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Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrowers no later than 5:00 p.m. three
(3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the Declined Proceeds. If a
Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an
acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be retained by the Borrowers (“Retained Declined Proceeds”).
(vi) [Reserved].
(vii)
Notwithstanding any other provision of this Section 2.05(b), (i) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Restricted Subsidiary that is a Foreign Subsidiary otherwise giving rise to a prepayment
pursuant to Section 2.05(b)(ii) (a “Restricted Disposition”), the Net Cash Proceeds of any Casualty Event of a Restricted Subsidiary that is a Foreign Subsidiary (a “Restricted Casualty Event”), or
Excess Cash Flow attributable to a Foreign Subsidiary would be prohibited or delayed by applicable local law from being distributed or otherwise transferred to the Borrowers, the realization or receipt of the portion of such Net Cash Proceeds or
Excess Cash Flow so affected will not be taken into account in measuring the Borrowers’ obligation to repay Term Loans at the times provided in Section 2.05(b)(i), or the Borrowers shall not be required to make a prepayment at the
time provided in Section 2.05(b)(ii), as the case may be, for so long, but only so long, as the applicable local law will not permit such distribution or transfer (the Parent Borrower hereby agreeing to cause the applicable Restricted
Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to permit such repatriation), and once distribution or transfer of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under
the applicable local law, the amount of such Net Cash Proceeds or Excess Cash Flow permitted to be distributed or transferred (net of additional taxes payable or reserved against as a result thereof) will be promptly (and in any event not later than
two (2) Business Days after such distribution or transfer is permitted) taken into account in measuring the Borrowers’ obligation to repay the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and
(ii) to the extent that the Parent Borrower has determined in good faith (as set forth in a written notice delivered to the Administrative Agent) that repatriation of any or all of the Net Cash Proceeds of any Restricted Disposition or any
Restricted Casualty Event or Excess Cash Flow attributable to a Foreign Subsidiary would have a material adverse tax consequence (taking into account any foreign tax credit or benefit received in connection with such repatriation), the amount of the
Net Cash Proceeds or Excess Cash Flow so affected shall not be taken into account in measuring the Borrowers’ obligation to repay Term Loans pursuant to this Section 2.05(b).
(viii)
Notwithstanding any other provision of this Section 2.05(b), (x) pending the final application of the Net Cash Proceeds of any Disposition or any Casualty Event, the Parent Borrower, the applicable Borrower or any Restricted Subsidiary may
apply such Net Cash Proceeds temporarily to reduce Indebtedness or otherwise apply such Net Cash Proceeds in any manner not prohibited by this Agreement, (y) the Parent Borrower, the applicable Borrower or any Restricted Subsidiary may, as the
case may be may elect to reinvest in assets useful for its business (other than working capital, except for short-term capital assets but including Permitted Acquisitions and Capital Expenditures) prior to receiving the Net Cash Proceeds
attributable to any given Disposition and deem the amount so reinvested to be applied pursuant to and in accordance with Section 2.05(b)(ii)(B) with respect to such Disposition and (z) the Waived Proceeds may be retained by the Borrowers
and are not required to be applied to prepay Indebtedness pursuant to this Section 2.05(b).
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(c) Interest, Funding Losses, Etc. All prepayments under this
Section 2.05 shall be accompanied by all accrued interest thereon, together with, in the case of any such prepayment of a Term Benchmark Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect
of such Term Benchmark Loan pursuant to Section 3.04.
Notwithstanding any of the other provisions of this
Section 2.05, so long as no Event of Default shall have occurred and be continuing, if any prepayment of Term Benchmark Loans is required to be made under this Section 2.05, prior to the last day of the Interest Period
therefor, in lieu of making any payment pursuant to this Section 2.05 in respect of any such Term Benchmark Loan prior to the last day of the Interest Period therefor, the Borrowers may, in their sole discretion, deposit with the
Administrative Agent the amount of any such prepayment otherwise required to be made hereunder 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 Borrowers or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05. Such deposit shall constitute cash collateral for the Term Benchmark Loans to be so prepaid;
provided that the Borrowers may at any time direct that such deposit be applied to make the applicable payment required pursuant to this Section 2.05.
(d) Discounted Voluntary Prepayments.
(i) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.13) or any other Loan
Document, the Borrowers shall have the right at any time and from time to time to prepay one or more Classes of Term Loans to the Lenders at a discount to the par value of such Loans and on a non pro rata basis (each, a “Discounted
Voluntary Prepayment”) pursuant to the procedures described in this Section 2.05(d); provided that (A) [reserved], (B) after giving effect to the Discounted Voluntary Prepayment, the aggregate
Outstanding Amount of all Term Loans that are held by Affiliated Lenders (other than Affiliated Debt Funds) shall not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding and (C) the Parent Borrower shall deliver to
the Administrative Agent, together with each Discounted Prepayment Option Notice, a certificate of a Responsible Officer of the Parent Borrower (1) stating that no Specified Event of Default (in each case, with respect to the Parent Borrower)
has occurred and is continuing or would result from the Discounted Voluntary Prepayment, (2) stating that each of the conditions to such Discounted Voluntary Prepayment contained in this Section 2.05(d) has been satisfied and
(3) specifying the aggregate principal amount of Term Loans of any Class offered to be prepaid pursuant to such Discounted Voluntary Prepayment.
(ii) To the extent the Borrowers seek to make a Discounted Voluntary Prepayment, the Borrowers will provide written notice to the
Administrative Agent substantially in the form of Exhibit I hereto (each, a “Discounted Prepayment Option Notice”) that the Borrowers desire to prepay Term Loans of one or more specified Classes in an aggregate
principal amount specified therein by the Borrowers (each, a “Proposed Discounted Prepayment Amount”), in each case at a discount to the par value of such Loans as specified below. The Proposed Discounted Prepayment Amount of any
Loans shall not be less than $10,000,000. The Discounted Prepayment Option Notice shall further specify with respect to the proposed Discounted Voluntary Prepayment (A) the Proposed Discounted Prepayment Amount for Loans to be prepaid,
(B) a discount range (which may be a single percentage) selected by the Borrowers with respect to such proposed Discounted Voluntary Prepayment equal to a percentage of par of the principal amount of the Loans to be prepaid (the
“Discount Range”), and (C) the date by which Lenders are required to indicate their election to participate in such proposed Discounted Voluntary Prepayment, which shall be at least five Business Days from and including the
date of the Discounted Prepayment Option Notice (the “Acceptance Date”).
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(iii) Upon receipt of a Discounted Prepayment Option Notice, the Administrative Agent
shall promptly notify each applicable Lender thereof. On or prior to the Acceptance Date, each such Lender may specify by written notice substantially in the form of Exhibit J hereto (each, a “Lender Participation Notice”)
to the Administrative Agent (A) a maximum discount to par within the Discount Range (for example, a Lender specifying a discount to par of 20% would accept a purchase price of 80% of the par value of the Term Loans to be prepaid) and (B) a
maximum principal amount (subject to rounding requirements specified by the Administrative Agent) of the Term Loans to be prepaid held by such Lender with respect to which such Lender is willing to permit a Discounted Voluntary Prepayment at the
Acceptable Discount (“Offered Loans”). Based on the Acceptable Discounts and principal amounts of the Term Loans to be prepaid specified by the Lenders in the applicable Lender Participation Notice, the Administrative Agent, in
consultation with the Borrowers, shall determine the applicable discount for such Term Loans to be prepaid (the “Applicable Discount”), which Applicable Discount shall be (A) the percentage specified by the Borrowers if the
Borrowers have selected a single percentage pursuant to Section 2.05(d)(ii) for the Discounted Voluntary Prepayment or (B) otherwise, the highest Acceptable Discount at which the Borrowers can pay the Proposed Discounted Prepayment
Amount in full (determined by adding the Outstanding Amount of Offered Loans commencing with the Offered Loans with the highest Acceptable Discount); provided, however, that in the event that such Proposed Discounted
Prepayment Amount cannot be repaid in full at any Acceptable Discount, the Applicable Discount shall be the lowest Acceptable Discount specified by the Lenders that is within the Discount Range. The Applicable Discount shall be applicable for all
Lenders who have offered to participate in the Discounted Voluntary Prepayment and have Qualifying Loans. Any Lender with outstanding Term Loans to be prepaid whose Lender Participation Notice is not received by the Administrative Agent by the
Acceptance Date shall be deemed to have declined to accept a Discounted Voluntary Prepayment of any of its Loans at any discount to their par value within the Applicable Discount.
(iv) The Borrowers shall make a Discounted Voluntary Prepayment by prepaying those Term Loans to be prepaid (or the respective portions
thereof) offered by the Lenders (“Qualifying Lenders”) that specify an Acceptable Discount that is equal to or greater than the Applicable Discount (“Qualifying Loans”) at the Applicable Discount;
provided that if the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would exceed the amount of aggregate proceeds required to prepay the Proposed Discounted Prepayment Amount,
such amounts in each case calculated by applying the Applicable Discount, the Borrowers shall prepay such Qualifying Loans ratably among the Qualifying Lenders based on their respective principal amounts of such Qualifying Loans (subject to rounding
requirements specified by the Administrative Agent). If the aggregate proceeds required to prepay all Qualifying Loans (disregarding any interest payable at such time) would be less than the amount of aggregate proceeds required to prepay the
Proposed Discounted Prepayment Amount, such amounts in each case calculated by applying the Applicable Discount, the Borrowers shall prepay all Qualifying Loans.
(v) Each Discounted Voluntary Prepayment shall be made within five (5) Business Days of the Acceptance Date (or such later date as
the Administrative Agent shall reasonably agree, given the time required to calculate the Applicable Discount and determine the amount and holders of Qualifying Loans), without premium or penalty, upon irrevocable notice substantially in the form of
Exhibit K hereto (each a “Discounted Voluntary Prepayment Notice”), delivered to the Administrative Agent no later than 1:00 p.m., New York City time, three (3) Business Days prior
91
to the date of such Discounted Voluntary Prepayment, which notice shall specify the date and amount of the Discounted Voluntary Prepayment and the Applicable Discount determined by the
Administrative Agent. Upon receipt of any Discounted Voluntary Prepayment Notice, the Administrative Agent shall promptly notify each relevant Lender thereof. If any Discounted Voluntary Prepayment Notice is given, the amount specified in such
notice shall be due and payable to the applicable Lenders, subject to the Applicable Discount on the applicable Loans, on the date specified therein together with accrued interest (on the par principal amount) to but not including such date on the
amount prepaid. The par principal amount of each Discounted Voluntary Prepayment of a Term Loan shall be applied ratably to reduce the remaining installments of such Class of Term Loans (as applicable).
(vi) To the extent not expressly provided for herein, each Discounted Voluntary Prepayment shall be consummated pursuant to procedures
(including as to timing, rounding, minimum amounts, Type and Interest Periods and calculation of Applicable Discount in accordance with Section 2.05(d)(ii) above) established by the Administrative Agent and the Borrowers, each acting
reasonably.
(vii) Prior to the delivery of a Discounted Voluntary Prepayment Notice, (A) upon written notice to the Administrative
Agent, the Borrowers may withdraw or modify their offer to make a Discounted Voluntary Prepayment pursuant to any Discounted Prepayment Option Notice and (B) no Lender may withdraw its offer to participate in a Discounted Voluntary Prepayment
pursuant to any Lender Participation Notice unless the terms of such proposed Discounted Voluntary Prepayment have been modified by the Borrowers after the date of such Lender Participation Notice.
(viii) Nothing in this Section 2.05(d) shall require the Borrowers to undertake any Discounted Voluntary Prepayment.
Section 2.06. Termination or Reduction of
Commitments. .
(a) Optional. The Borrowers 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; provided that (i) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination or reduction and
(ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $100,000 in excess thereof. Notwithstanding the foregoing, the Borrowers may rescind or postpone any notice of termination of the Commitments
if such termination would have resulted from a refinancing of all of the Term Facility, which refinancing shall not be consummated or otherwise shall be delayed.
(b) Mandatory. (a) The Initial Term A-1 Commitment of each Initial Term A-1 Lender shall be automatically and permanently reduced
to $0 upon the making of such Initial Term A-1 Lender’s Initial Term A-1 Loans pursuant to Section 2.01 on the Closing Date and (b) the Initial Term B-1 Commitment of each Initial Term B-1 Lender shall be automatically and
permanently reduced to $0 upon the making of such Initial Term B-1 Lender’s Initial Term B-1 Loans pursuant to Section 2.01 on the Closing Date.
(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent will promptly notify the Lenders of any termination
or reduction of unused Commitments of any Class under this Section 2.06.
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Section 2.07. Repayment of Loans.
.
(a) Term B Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of the Term B-1 Lenders holding Initial
Term B-1 Term Loans in Dollars (i) on the last Business Day of each March, June, September and December, commencing with the second such date to occur after the Closing Date, an aggregate principal amount equal to 0.25% of the aggregate
principal amount of the Initial Term B-1 Term Loans funded on the Closing Date and (ii) on the Initial Term B-1 Maturity Date, the aggregate principal amount of all Initial Term B-1 Loans outstanding on such date; provided that payments
required by clause (i) above shall be reduced as a result of the application of prepayments in accordance with Section 2.05. In the event any Incremental Term Loans or Extended Term Loans are made, such Incremental Term Loans
or Extended Term Loans, as applicable, shall be repaid by the Borrowers in the amounts and on the dates set forth in the definitive documentation with respect thereto and on the applicable Maturity Date thereof.
(b) Term A Loans. The Borrowers shall repay to the
Administrative Agent for the ratable account of the Term A-1 Term Lenders holding the Initial Term A-1 Term Loans in Dollars on the last Business Day of each March, June, September and December, commencing with the second such date to occur after
the Closing Date, (i) for each of the first four quarters following such first repayment date, the aggregate principal amount of the Initial Term A-1 Term Loans equal to 0.00% of the aggregate principal amount of the Initial Term A-1 Term Loans
funded on the Closing Date, (ii) for the fifth quarter following such first repayment date through and including the eighth quarter following such repayment date, the aggregate principal amount of the Initial Term A-1 Term Loans equal to 0.625%
of the aggregate principal amount of the Initial Term A-1 Term Loans funded on the Closing Date, (ii) for the ninth quarter following such first repayment date through and including the twelfth quarter following such repayment date, the
aggregate principal amount of the Initial Term A-1 Term Loans equal to 1.25% of the aggregate principal amount of the Initial Term A-1 Term Loans funded on the Closing Date, (iii) for each of the subsequent quarters following the first twelve
quarters of repayment, the aggregate principal amount of the Initial Term A-1 Term Loans equal to 1.875% of the aggregate principal amount of the Initial Term A-1 Term Loans funded on the Closing Date, and (iv) on the Initial Term A-1
Maturityrepaid on the Amendment No. 2
Effective Date, the aggregate principal amount of the Initial Term A-1 Term Loans outstanding on such date;
provided that payments required by clauses (i), (ii) and (iii) above shall be reduced as a result of the application of prepayments in accordance with Section 2.05. In the event any Incremental Term Loans or Extended Term Loans, in
each case, are made as a Term A Loan, such Incremental Term Loans or Extended Term Loans, as applicable, shall be repaid by the Borrowers in the amounts and on the dates set forth in the definitive documentation with respect thereto and on the
applicable Maturity Date
thereof..
Section 2.08. Interest. .
(a) Subject to the provisions of Section 2.08(b), with respect to Term B-1
Term Loans and Term A-1 Term Loans, (i) each Term Benchmark Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Term Benchmark for such Interest Period plus the
Applicable Rate; (ii) each Base Rate 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.
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(b) Subject to the occurrence and continuation of a Specified Event of Default, at the
election of the Administrative Agent or the Required Lenders, the Borrowers shall pay interest on past due amounts under this Agreement at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted
by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand to the fullest extent permitted by and subject to applicable Laws, including in relation to any
required additional agreements.
(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. .
(a) The Borrowers 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 Borrowers and the applicable Agent).
Section 2.10. Computation of Interest and Fees . All computations of interest for Base Rate Loans when the Base Rate is determined
by the Prime Rate shall be made on the basis of a year of three hundred sixty five (365) days or three hundred sixty six (366) days, as the case may be, 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 such Loan is made, and shall not accrue on such Loan, or any portion thereof, for the day on which such Loan or
such portion is paid; provided that any such 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 by one or
more entries in the Register. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers 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, the Register shall be conclusive in the absence of demonstrable error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall
execute and deliver to such Lender (through the Administrative Agent) a Term Note payable to such Lender or its registered assigns, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach
schedules to its Term Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
Section 2.12. Payments Generally. .
(a) All payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein all payments by the Borrowers 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 in Dollars. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal of and interest on Loans denominated in Dollars shall
be made to the Administrative Agent, for the account of the respective
94
Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars. Without limiting the generality of the foregoing, the Administrative Agent may require
that any payments due under this Agreement be made in the United States. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (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 3:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(b) If any payment to be made by the Borrowers 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 Term Benchmark Loans
to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.
(c) Unless the
Borrowers 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 Borrowers or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrowers 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 immediately available funds, then:
(i) if the Borrowers failed to make such payment, then the applicable Lender agrees to pay to the Administrative Agent
forthwith on demand the portion of such assumed payment that was made available to such Lender in immediately available 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 immediately available funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation, it being understood that 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 Borrowers
may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make
such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative
Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation. 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 forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. 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 Borrowers may have against any Lender as a result of any default by such Lender hereunder.
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A notice of the Administrative Agent to any Lender or the Borrowers with respect to any
amount owing under this Section 2.12(c) shall be conclusive, absent demonstrable 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 Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV 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 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, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such
Lender’s Applicable Percentage of the Outstanding Amount of all Loans 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, 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 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 each of them; provided that (x) 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
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amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon, (y) the provisions of this Section 2.13 shall not
be construed to apply to any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its
Loans and (z) the provisions of this Section 2.13 shall not be construed to apply to any disproportionate payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of
some but not all Loans or Commitments of that Class or any amendment to the Applicable Rate (or other pricing term, including any fee, discount or premium) and/or any other amendment in respect of Loans or Commitments of Lenders that have consented
to any such amendment. The Borrowers agree 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 Borrowers in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding
in the absence of demonstrable 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) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (1) to increase the amount of Term A Loans or
add one or more additional tranches of “term a” loans (any such Term A Loans, or additional tranche of “term a” loans, the “Incremental Term A
Loans”)[reserved] and/or (2) to
increase the amount of Term B Loans or add one or more additional tranches of “term b” loans (any such Term B Loans, or additional tranche of “term b” loans, the “Incremental Term B Loans”and together with the Incremental Term A Loans, collectively,or the “Incremental Term Loans”). Notwithstanding
anything to contrary herein, the aggregate principal amount of all Incremental Term Loans (other than Refinancing Term Loans) (determined at the time of incurrence), together with the aggregate principal amount of all Incremental Equivalent Debt,
shall not exceed (i) the Unrestricted Incremental Amount minus the aggregate principal amount of Incremental Revolving Credit Commitments (as defined in the
Existing OMI Credit Agreement) that is incurred on or prior to the date of the incurrence of any such Incremental Term Loans in reliance on the Unrestricted Incremental First Lien Amount (as defined in the Existing OMI Credit
Agreement)[reserved] plus (ii) the
amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and voluntary permanent reductions of any revolving credit facility effected after the Closing Date (including pursuant to debt buy-backs made by
the Parent Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding
(A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Loans or Term Loans in connection with a substantially concurrent issuance of new
revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under any revolving Indebtedness without a substantially concurrent permanent
commitment reduction) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Term Loans and Incremental
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Equivalent Debt so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other
appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Term Loans or Incremental Equivalent Debt, as the case may be),
(A) [reserved], (B) if such Incremental Term Loans are
secured by a Lien on the Collateral that is pari passu
withjunior to the Liens securing the Initial Term A-1 Term Loans and the Initial Term B-1 Term Loans, either (x) the First
LienSecured Leverage Ratio for the most recently
ended Test Period does not
exceed
2.053.00
:1.00 (or, to the extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the First
LienSecured Leverage Ratio for the most recently
ended Test Period does not exceed the greater of
2.053.00
:1.00 and the First
LienSecured Leverage Ratio immediately prior to
such Permitted Acquisition or permitted Investment), (B) if such Incremental Term Loans are secured by a Lien on the Collateral that is junior to the Liens
securing the Initial Term A-1 Term Loans and the Initial Term B-1 Term Loans, the Secured Leverage or
(y) the Consolidated Interest Coverage Ratio for the most recently ended Test Period doesis not exceed 2.80:less than
2.00:1.00 (or, to the extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Secured
LeverageConsolidated Interest Coverage Ratio for
the most recently ended Test Period
doesis
not
exceedless
than the
greaterlower
of
2.802.00
:1.00 and the Secured Leverage RatioConsolidated Interest Coverage Ratio immediately prior to such Permitted
Acquisition or permitted Investment) or (C) if such Incremental Term Loans are unsecured or secured solely by assets that do not constitute
Collateral,, either (x) the Total Leverage
Ratio for the most recently ended Test Period does not exceed 4.10 4.00:1.00 (or, to the extent such Incremental Term Loans are incurred in
connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Total Leverage Ratio for the most recently ended Test Period does not exceed the greater of 4.104.00:1.00 and the Total Leverage Ratio immediately prior to such Permitted
Acquisition or permitted Investment) or (y) the Consolidated Interest Coverage Ratio for the most recently ended Test Period is not less than 2.00:1.00 (or, to the extent such Incremental Term Loans are incurred in connection with any Permitted
Acquisition or similar Investment not prohibited by the Loan Documents, the Consolidated Interest Coverage Ratio for the most recently ended Test Period is not less than the lower of 2.00:1.00 and the Consolidated Interest Coverage Ratio immediately prior to such Permitted Acquisition or permitted Investment), it being understood and agreed that Incremental Term Loans may be incurred pursuant to this clause (iii) prior to utilization
of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes
of such calculation that the full committed amount of any Incremental Term Loans or Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the
“Incremental Incurrence Test”). Each Incremental Term Loan (i) shall be in Dollars or in another currency that is administratively feasible for the Administrative Agent and (ii) shall be in an integral multiple of
$1,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans; provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability
hereunder as set forth above. Each Incremental Term Loan (i) shall, if guaranteed, be guaranteed by the Guarantors that guarantee the other Obligations hereunder and (ii) if secured, will be secured by a Lien on the Collateral securing all
of the other Obligations hereunder.
(b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for
purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) (x) in the case of Incremental Term A
Loans, Initial Term A-1 Term Loans,[reserved], or (y) in the case of Incremental Term B Loans, Initial
Term B-1 Term Loans, (ii) shall have interest rate margins, amortization schedule (subject to clauses (iii) and (iv)), optional prepayment or redemption terms and other terms as determined by the Borrowers and the lenders
98
thereunder (provided that in the case of any Incremental Term Loans that are (A) secured by the Collateral on a pari passu basis with the Initial Term B-1 Term Loans in right
of payment and with respect to security (excluding any Qualifying Bridge Facility), (B) denominated in Dollars, (C) in an aggregate principal amount in excess of the greater of (I) $330,000,000 and (II) 50% of Consolidated EBITDA as
of the most recent Test Period, (D) incurred during the first twenty-four (24) months after the Closing Date, (E) scheduled to mature prior to the date that is one (1) year after the Maturity Date applicable to the Initial Term
B-1 Term Loans, (F) not incurred to finance a Permitted Acquisition or other similar Investment and (G) syndicated ““
term
b””
loans (any such Term Loans meeting the criteria of clauses (A) through (G) and the following proviso, “Qualifying Term Loans”), if the All-In Yield for
any such Incremental Term Loan exceeds the All-In Yield of the Initial Term B-1 Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set
forth below, the interest rate floor relating to the Initial Term B-1 Term Loans shall be adjusted such that the All-In Yield of the Initial Term B-1 Term Loans is equal to the All-In Yield of such Incremental Term Loans minus 0.50% per
annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the
“MFN Adjustment”); provided, further, that any increase in All-In Yield with respect to the Initial Term B-1 Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the
interest rate floor applicable to the Initial Term B-1 Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term B-1 Term Loans), (iii) other than with respect to any Inside Maturity Debt and any Qualifying Bridge Facility, any Incremental Term Loan shall not have a final maturity
date earlier than the Maturity Date applicable to the Initial Term A-1 Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Initial Term
B-1 Term Loans (if such Incremental Term Loans are Incremental Term B Loans), as
applicable, (iv) other than with respect to any Inside Maturity Debt and any Qualifying Bridge Facility, any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term A-1 Term Loans (if such Incremental Term Loans are Incremental Term A Loans) or Initial Term B-1 Term Loans (if such Incremental Term Loans are Incremental Term B Loans), as applicable, and (v) except to the extent
otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial Term A-1 Term Loans (if such Incremental Term
Loans are Incremental Term A Loans) or Initial Term B-1 Term Loans (if such Incremental Term Loans are
Incremental Term B Loans), as applicable, or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the
Administrative Agent for terms and conditions that are more restrictive than the Initial Term A-1 Term Loans (if such Incremental Term Loans are Incremental
Term A Loans) or Initial Term B-1 Term Loans (if such Incremental Term Loans are Incremental Term B
Loans), as applicable, to the extent that they apply to periods after the then applicable Latest Maturity Date with respect to the Term A Loans (if such Incremental Term Loans are Incremental Term A Loans) or Term B Loans (if such Incremental Term Loans are Incremental Term B Loans), as
applicable,B Loans or are otherwise added for the
benefit of the Term Lenders holding Term A Loans (if such Incremental Term Loans are Incremental Term A Loans) or Term Lenders holding Term B Loans (if such
Incremental Term Loans are Incremental Term B Loans), as applicable,B Loans hereunder.
(c) [Reserved].
(d) Each notice from the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the
relevant Incremental Term Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrowers and, solely to the extent Administrative
99
Agent’sAgent’s
consent would be required an assignment pursuant to Section 10.07, the Administrative Agent
(any such bank, financial institution, existing Lender or other Person being called an “Additional
Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as
appropriate, the other Loan Documents, executed by Parent Borrower, the Borrowers and such Additional Lender. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such
Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. Commitments in respect of any Incremental Term Loans shall become Commitments under this Agreement. An Incremental Facility
Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrowers and the Administrative Agent, to effect the provisions of this
Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed.
(e) The
effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing
Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in Section 4.02 being true and correct in all material
respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references
to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (ii) no Event of Default shall exist, or would result from such issuance of the Incremental Term Loans; provided
in the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition Transaction, (1) governed by the laws of the United States, (X) the only representations and warranties that will be required to be
true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (Y) Section 4.02(b) shall be limited to Specified Events of Default and (2) governed by
laws other than the laws of the United States, only customary “certain funds” conditions for the applicable jurisdiction or as required by the terms of the documentation governing such Limited Condition Transaction will be required to be
satisfied. The proceeds of any Incremental Term Loans will be used for general corporate purposes (including (without limitation) Permitted Acquisitions) and for any other purpose not prohibited hereunder. The Administrative Agent and the Lenders
hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) Any portion of any Incremental Term Loans incurred other than under the Incremental Incurrence Test may be reclassified at any time, as
the Parent Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if the Parent Borrower meets the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to
the incurrence of such Incremental Term Loans (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Parent Borrower).
Section 2.15. Extensions of Term Loans. .
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or
more offers (each, an “Extension Offer”) made from time to time by the Borrowers to all Lenders of any Class of Term Loans on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans of
the applicable Class) and on the same terms to each such Lender,
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the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of
each such Lender’s Term Loans of the applicable Class and otherwise modify the terms of such Term Loans pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in
respect of such Term Loans (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans, and which such extensions shall not be subject to any “no default” requirement, pro forma
compliance with any leverage ratio or other financial tests or “most favored nations provisions”) (each, an “Extension,” and each group of Term Loans in each case as so extended, as well as the original Term Loans (in
each case not so extended), being a separate Class of Term Loans from the Class of Term Loans from which they were converted, and it being understood that an Extension may be in the form of an increase in the amount of any other outstanding Class of
Term Loans otherwise satisfying the criteria set forth below), so long as the following terms are satisfied: (i) except as to interest rates, fees and final maturity (which shall be determined by the Parent Borrower and set forth in the
relevant Extension Offer), (ii) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iii),
(iv) and (v), be determined by the Parent Borrower and set forth in the relevant Extension Offer), the Term Loans of any Term Lender that agrees to an extension with respect to such Term Loans extended pursuant to any Extension
(“Extended Term Loans”) shall have the same terms as the Class of Term Loans subject to such Extension Offer other than with respect to covenants or other provisions applicable to periods after the Latest Maturity Date,
(iii) the final maturity date of any Extended Term Loans shall be no earlier than the then latest maturity date hereunder and the amortization schedule applicable to Term Loans pursuant to Section 2.07(a) for periods prior to the
Maturity Date for Term Loans may not be increased, (iv) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (v) any
Extended Term Loans may participate (A) on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) in any voluntary repayments or prepayments hereunder and (B) on a pro rata basis or a less than pro rata
basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vi) if the aggregate principal amount of the class of Term Loans (calculated on
the face amount thereof) in respect of which Term Lenders of such Class, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans of such Class, as the case may be,
offered to be extended by the Borrowers pursuant to such Extension Offer, then the Term Loans of such Class, as the case may be, of such Term Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but
not to exceed actual holdings of record) with respect to which such Term Lenders have accepted such Extension Offer, (vii) all documentation in respect of such Extension shall be consistent with the foregoing, (viii) any applicable Minimum
Extension Condition shall be satisfied unless waived by the Borrowers and (ix) the Minimum Tranche Amount shall be satisfied unless waived by the Administrative Agent. No Lender shall be obligated to extend its Term Loans unless it so
agrees.
(b) With respect to all Extensions consummated by the Borrowers pursuant to this Section 2.15,
(i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.05 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment;
provided that (x) the Borrowers may at their election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the
relevant Extension Offer in the Borrowers’ sole discretion and may be waived by the Borrowers) of Term Loans of any or all applicable Classes be tendered and (y) no Class of Extended Term Loans shall be in an amount of
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less than $10,000,000 (the “Minimum Tranche Amount”), unless such Minimum Tranche Amount is waived by the Administrative Agent. The Administrative Agent and the Lenders hereby
consent to the transactions contemplated by this Section 2.15 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on the such terms as may be set forth in the relevant
Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.05, 2.12 and 2.13) or any other Loan Document that may otherwise prohibit any such Extension
or any other transaction contemplated by this Section 2.15.
(c) No consent of any Lender or the Administrative Agent shall be
required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans (or a portion thereof); provided that any Lender that elects not to agree to such Extension
(such Lender being, a “Non-Extending Lender”) may be replaced by the Borrowers pursuant to Section 3.06. All Extended Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the
other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter
into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new Classes in respect of Term Loans so extended and such technical amendments as may be necessary or appropriate in the
reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new Classes, in each case on terms consistent with this Section 2.15. Without limiting the foregoing, in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the Administrative Agent is hereby
directed to amend) any Mortgage that has a maturity date prior to the then Latest Maturity Date so that such maturity date is extended to the then Latest Maturity Date (or such later date as may be advised by local counsel to the Administrative
Agent).
(d) In connection with any Extension, the Borrowers shall
provide the Administrative Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation,
regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case
acting reasonably to accomplish the purposes of this Section 2.15.
Section 2.16. Defaulting LendersDefaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender
is a Defaulting Lender:
(a) [reserved];
(b) the Commitment, Outstanding Amount of Term Loans of such Defaulting Lender shall not be included in determining whether all Lenders, the
Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.01); provided that (x) any waiver, amendment or modification of the
type described in clause (a), (b) or (c) of the first proviso in Section 10.01 that would apply to the Obligations owing to such Defaulting Lender or (y) any waiver, amendment or modification (other
than as described in the forgoing clause (x) requiring the consent of all Lenders or each affected Lender) which affects such Defaulting Lender disproportionally when compared to other affected Lenders, in each case, shall require the
consent of such Defaulting Lender with respect to the effectiveness of such waiver, amendment or modification with respect to the Obligations owing to such Defaulting Lender;
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(c) 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 IX 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, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect
of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court
of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fourth, so long as no Default or Event of Default exists, to the
payment of any amounts owing to any Loan Party as a result of any judgment of a court of competent jurisdiction obtained by any Loan Party against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and fifth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal amount of any Loans, such payment shall be applied solely
to pay the relevant Loans of the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this clause (c).
Section 2.17. Permitted Debt
Exchange.
.
(a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt
Exchange Offer”) made from time to time by the Borrowers to all Lenders (other than, with respect to any Permitted Debt Exchange Offer that constitutes an offering of securities, any Lender that, if requested by the Parent Borrower, is
unable to certify that it is (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), (ii) an institutional “accredited investor” (as defined in Rule 501 under the Securities Act) or
(iii) not a “U.S. person” (as defined in Rule 902 under the Securities Act)) with outstanding Term A-1 Loans of a particular Class or Term
B-1 Loans of a particular Class, the Borrowers may from time to time consummate one or more exchanges of such Term Loans for Indebtedness (in the form of senior secured, senior unsecured,
senior subordinated, or subordinated notes or loans) (such Indebtedness, “Permitted Debt Exchange Notes” and each such exchange, a “Permitted Debt Exchange”), so long as the following conditions are satisfied:
(i) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Lenders (other than, with
respect to any Permitted Debt Exchange Offer that constitutes an offering of securities, any Lender that, if requested by the Borrowers, is unable to certify that it is (i) a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act), (ii) an institutional “accredited investor” (as defined in Rule 501 under the Securities Act) or (iii) not a “U.S. person” (as defined in Rule 902 under the Securities Act)) of each
applicable Class based on their respective aggregate principal amounts of outstanding Term A-1 Loans under each such Class or Term B-1 Loans under each such Class, as applicable;
(ii) the aggregate principal amount (calculated on the face amount thereof) of such Permitted Debt Exchange Notes shall not
exceed the aggregate principal amount (calculated on the face amount thereof) of Term Loans so refinanced, except to the extent a different incurrence basket pursuant Section 7.01 is utilized and with respect to an amount equal to any
fees, expenses, commissions, underwriting discounts and premiums payable in connection with such Permitted Debt Exchange;
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(iii) the stated final maturity of such Permitted Debt Exchange Notes is not
earlier than the latest Maturity Date for the Class or Classes of Term A-1 Loans or Term B-1 Loans being
exchanged, as applicable, and such stated final maturity is not subject to any conditions that could result in such stated final maturity occurring on a date that precedes such latest maturity date (it being understood that acceleration or mandatory
repayment, prepayment, redemption or repurchase of such Permitted Debt Exchange Notes upon the occurrence of an event of default, a change in control, an event of loss or an asset disposition shall not be deemed to constitute a change in the stated
final maturity thereof);
(iv) such Permitted Debt Exchange Notes are not required to be repaid, prepaid, redeemed,
repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default, a change in control, an event of loss or
an asset disposition) prior to the latest Maturity Date for the Class or Classes of Term A-1 Term Loans or Term
B-1 Term Loans, as applicable, being exchanged; provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated, including scheduled offers to
repurchase) of such Permitted Debt Exchange Notes shall be permitted so long as the Weighted Average Life to Maturity of such Indebtedness shall be longer than the remaining Weighted Average Life to Maturity of the Class or Classes of Term A-1 Term Loans or Term B-1 Term Loans, as applicable, being exchanged;
(v) no Restricted Subsidiary is a borrower or guarantor with respect to such Indebtedness unless such Restricted Subsidiary is
or substantially concurrently becomes a Loan Party;
(vi) if such Permitted Debt Exchange Notes are secured, such Permitted
Debt Exchange Notes are secured on a pari passu basis or junior priority basis to the Obligations and (A) such Permitted Debt Exchange Notes are not secured by any assets not securing the Obligations unless such assets substantially
concurrently secure the Obligations and (B) the beneficiaries thereof (or an agent on their behalf) shall have entered into an Acceptable Intercreditor Agreement;
(vii) the terms and conditions of such Permitted Debt Exchange Notes (excluding pricing and optional prepayment or redemption
terms or covenants or other provisions applicable only to periods after the Maturity Date of the Class or Classes of Term A-1 Term Loans or Term B-1 Term Loans, as applicable, being exchanged) reflect market
terms and conditions at the time of incurrence or issuance as reasonably determined by the Parent Borrower in good faith; provided that if such Permitted Debt Exchange Notes contain any financial maintenance covenants, such covenants shall
not be more restrictive than (or in addition to) those contained in this Agreement (unless such covenants are also added for the benefit of the Lenders under this Agreement, in which case any requirement to so comply shall not require the consent of
any Lender or Agent hereunder);
(viii) all
Term A-1 Term Loans or Term B-1 Term Loans, as applicable, exchanged under each applicable Class by the Borrowers pursuant to any Permitted Debt Exchange
shall automatically be canceled and retired by the Borrowers on date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment
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and Assumption, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term A-1 Term Loans or Term B-1 Term
Loans, as applicable, being exchanged pursuant to the Permitted Debt Exchange to the Borrowers for
immediate cancellation), and accrued and unpaid interest on such Term A-1 Term Loans or Term B-1 Term
Loans, as applicable, shall be paid to the exchanging Lenders on the date of consummation of such
Permitted Debt Exchange, or, if agreed to by the Borrowers and the Administrative Agent, the next scheduled Interest Payment Date with respect to such Term A-1
Term Loans or Term B-1 Term Loans, as applicable, (with such interest accruing until the date of consummation of such Permitted Debt Exchange);
(ix) if the aggregate principal amount of all Term
A-1 Term Loans or Term B-1 Term Loans (calculated on the face amount thereof), as applicable and in each case, of a given Class tendered by Lenders in respect of the relevant Permitted Debt
Exchange Offer (with no Lender being permitted to tender a principal amount of Term A-1 Term Loans or Term B-1 Term Loans, as applicable, which exceeds the principal amount
thereof of the applicable Class actually held by it) shall exceed the maximum aggregate principal amount of Term A-1 Term Loans or Term B-1 Term Loans, as applicable and in each case, of such Class
offered to be exchanged by the Borrowers pursuant to such Permitted Debt Exchange Offer, then the Borrowers shall exchange Term A-1 Term Loans or Term
B-1 Term Loans, as applicable and in each case, under the relevant Class tendered by such Lenders ratably up to such maximum based on the respective principal amounts so tendered, or, if such Permitted Debt Exchange Offer shall have been made with respect to
multiple Classes without specifying a maximum aggregate principal amount offered to be exchanged for each Class, and the aggregate principal amount of all Term
A-1 Term Loans or Term B-1 Term Loans (calculated on the face amount thereof), as applicable and in each case, of all Classes tendered by Lenders in respect of the relevant Permitted Debt
Exchange Offer (with no Lender being permitted to tender a principal amount of Term A-1 Term Loans or Term B-1 Term Loans, as applicable, which exceeds the principal amount
thereof actually held by it) shall exceed the maximum aggregate principal amount of Term Loans of all relevant Classes offered to be exchanged by the Borrowers pursuant to such Permitted Debt Exchange Offer, then the Borrowers shall exchange Term
A-1 Term Loans or Term B-1 Term Loans, as applicable and in each case, across all Classes subject to such Permitted Debt Exchange Offer tendered by such
Lenders ratably up to such maximum amount based on the respective principal amounts so tendered;
(x) all
documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing, and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing
and made in consultation with the Borrower and the Administrative Agent;
(xi) any applicable Minimum Tender Condition or
Maximum Tender Condition, as the case may be, shall be satisfied or waived by the Borrowers; and
(xii) such Permitted Debt
Exchange Notes shall have the same lien priority or junior priority as the Indebtedness being exchanged or unsecured.
Notwithstanding anything to the
contrary herein, no Lender shall have any obligation to agree to have any of its Loans or Commitments exchanged pursuant to any Permitted Debt Exchange Offer.
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(b) With respect to all Permitted Debt Exchanges effected by the Borrowers pursuant to this
Section 2.17, such Permitted Debt Exchange Offer shall be made for not less than $10,000,000 in aggregate principal amount of the applicable Term Loans; provided that subject to the foregoing the Borrowers may at its election
specify (A) as a condition (a “Minimum Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the
Borrowers’ discretion) of Term A-1 Term Loans or Term B-1 Term Loans, as applicable and in each case, of any or all applicable Classes be tendered and/or (B) as a condition (a
“Maximum Tender Condition”) to consummating any such Permitted Debt Exchange that no more than a maximum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrowers’ discretion) of
Term A-1 Term Loans or Term B-1 Term Loans, as applicable and in each case, of any or all applicable Classes will be accepted for exchange. The
Administrative Agent and the Lenders hereby acknowledge and agree that the provisions of SectionsSection 2.05, Section 2.06 and Section 2.13 do not apply to the Permitted Debt Exchange and
the other transactions contemplated by this Section 2.17 and hereby agree not to assert any Default or Event of Default in connection with the implementation of any such Permitted Debt Exchange or any other transaction contemplated by
this Section 2.17.
(c) In connection with each Permitted Debt Exchange, the Borrowers shall provide the Administrative
Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrowers and the Administrative Agent, acting reasonably, shall mutually agree to such
procedures as may be necessary or advisable to accomplish the purposes of this Section 2.17; provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to
indicate their election to participate in such Permitted Debt Exchange shall be not less than five (5) Business Days following the date on which the Permitted Debt Exchange Offer is made. The Borrowers shall provide the final results of such
Permitted Debt Exchange to the Administrative Agent no later than three (3) Business Days prior to the proposed date of effectiveness for such Permitted Debt Exchange (or such shorter period agreed to by the Administrative Agent in its sole
discretion) and the Administrative Agent shall be entitled to conclusively rely on such results.
(d) The Borrowers shall be responsible
for compliance with, and hereby agrees to comply with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being understood and agreed that (i) neither the Administrative Agent nor any Lender assumes any
responsibility in connection with the Borrowers’ compliance with such laws in connection with any Permitted Debt Exchange and (ii) each Lender shall be solely responsible for its compliance with any applicable “insider
trading” laws and regulations to which such Lender may be subject under the Exchange Act.
Section 2.18. Parent Borrower as
Agent. The Borrowers hereby appoint the Parent Borrower to act as their agent for all purposes under this Agreement (including, without limitation, with respect to all matters related to the borrowing and repayment of Loans) and the other Loan
Documents and agree that (i) the Parent Borrower may execute such documents on behalf of the Borrowers as the Parent Borrower deems appropriate in its sole discretion and the Borrowers shall be obligated by all of the terms of any such document
executed on their behalf, (ii) any notice or communication delivered by the Administrative Agent or any Lender to Parent Borrower shall be deemed delivered to all Borrowers and (iii) the Administrative Agent and the Lenders may accept, and
be permitted to rely on, any document, instrument or agreement executed by the Parent Borrower on behalf of the Borrowers. For the avoidance of doubt, each Borrower shall be jointly and severally liable with the other Borrowers for all Obligations
hereunder.
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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 by the Borrowers or any Guarantor to or for the account of any
Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any Taxes unless required by applicable Law. If any applicable withholding agent (as determined in the good faith discretion of an applicable
withholding agent) shall be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to any Agent or any Lender, (i) if such Taxes are Indemnified Taxes, the sum payable by the Borrowers or
applicable Guarantor shall be increased as necessary so that after all required deductions have been made (including deductions 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 been made, (ii) such applicable withholding agent shall make such deductions, (iii) such applicable withholding agent shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of such payment by such applicable withholding agent (or, if receipts or evidence are not available within
thirty (30) days, as soon as possible thereafter), such applicable withholding agent shall furnish to Borrowers and such Agent or Lender (as the case may be) the original or a facsimile copy (which may be delivered via email) of a receipt
evidencing payment thereof to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent.
(b) The Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) The Borrowers agree to indemnify each Agent and each
Lender for (i) the full amount of Indemnified Taxes (including any Indemnified Taxes imposed or asserted by any jurisdiction in respect of amounts payable under this Section 3.01) payable by such Agent and such Lender and
(ii) any reasonable and documented out-of-pocket expenses arising therefrom or with respect thereto, in each case whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Such
Agent or Lender, as the case may be, will, at the Borrowers’ request, provide the Borrowers with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts which shall be conclusive absent manifest
error. Payment under this Section 3.01(c) shall be made
within ten (10) days after the date such Lender or such Agent makes a demand therefor.
(d) If any Lender or Agent determines,
in its reasonable discretion, that it has received a refund in respect of any Taxes as to which indemnification or additional amounts have been paid to it by the Borrowers or any Guarantor pursuant to this Section 3.01, it shall promptly
remit an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrowers or any Guarantor under this Section 3.01 with respect to the Taxes giving rise to such refund to the
Borrowers, net of all reasonable and documented 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 taxing authority with respect to such
refund); provided that the Borrowers, upon the request of the Lender or Agent, as the case may be, agree promptly to return an amount equal to such refund (plus any applicable interest, additions to tax or penalties) to such party in the
event such party is required to repay such refund to the relevant taxing authority. Nothing herein contained shall interfere with the right of a Lender or Agent to arrange its Tax
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affairs in whatever manner it thinks fit nor oblige any Lender or Agent to claim any Tax refund or to make available its Tax returns or disclose any information relating to its Tax affairs or any
computations in respect thereof or require any Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs, remissions or repayments to which it may be entitled.
(e) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.01(a) or
(c) with respect to such Lender it will, if requested by the Borrowers, use commercially reasonable efforts (subject to legal and regulatory restrictions), at Borrowers’ expense, to designate another Applicable Lending Office for
any Loan affected by such event; provided that such efforts are made on terms that, in the judgment of such Lender, cause such Lender and its Applicable Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and
provided, further, that nothing in this Section 3.01(e) shall affect or postpone any of the Obligations of the Borrowers or the rights of such Lender pursuant to Section 3.01(a) or (c).
(f) Each Lender shall, at such times as are reasonably requested by the Borrowers or the Administrative Agent, provide the Borrowers and the
Administrative Agent with any documentation prescribed by law, or reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with
respect to any payments to be made to such Lender under any Loan Document. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any documentation specifically referenced below) expired,
obsolete or inaccurate in any material respect, deliver promptly to the Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or
promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
Without limiting the generality of the
foregoing:
(i) Each Lender that is a “United States person” (as defined in Section 7701(a)(30) of the
Code) shall deliver to the Borrowers and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and a duly signed original of Internal Revenue Service Form W-9 (or any successor form)
certifying that such Lender is exempt from U.S. federal backup withholding;
(ii) Each Lender that is not a “United
States person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrowers and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter when required
by Law or upon the reasonable request of the Borrowers or the Administrative Agent) whichever of the following is applicable:
(A) a duly completed copy of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms) claiming
eligibility for benefits of an income tax treaty to which the United States is a party,
(B) a duly completed copy of
Internal Revenue Service Form W-8ECI (or any successor forms),
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(C) in the case of a Lender claiming the benefits of the exemption for
portfolio interest under Section 871(h) or 881(c) or the Code, (x) a certificate, in substantially the form of Exhibit H-1 (any such certificate a “United States Tax Compliance Certificate”), or any
other form approved by the Administrative Agent, to the effect that such Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Parent Borrower
within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that no payments in connection with the Loan Documents are effectively
connected with such Lender’s conduct of a U.S. trade or business, and (y) a duly completed copy of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor forms),
(D) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership), Internal Revenue
Service Form W-8IMY (or any successor forms) of the Lender, accompanied by a Form W-8ECI, W-8BEN or W-8BEN-E, as applicable (or any successor forms), a United States Tax Compliance Certificate substantially the form of Exhibit H-2 or
Exhibit H-3, Form W-9, Form W-8IMY (or other successor forms) and/or any other required information from each beneficial owner, as applicable (provided that, if the Lender is a partnership and one or more direct or indirect
partners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Lender substantially in the form of Exhibit H-4 on behalf of such direct or indirect partner(s)), or
(E) a duly completed copy of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury
regulations) 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.
(iii) 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 Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent
at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers 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 Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or
has not complied with such Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this
Section 3.01(f)(iii), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.
Notwithstanding any other provision of this clause (f), a Lender
shall not be required to deliver any form that such Lender is not legally eligible to deliver.
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(f).
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(g) On or before the date that it becomes a party to this Agreement, the Administrative
Agent shall provide the Borrowers with a duly completed copy of, if it is a United States person (as defined in Section 7701(a)(30) of the Code), Internal Revenue Service Form W-9 certifying that it is exempt from U.S. federal backup
withholding, and, if it is not a United States person, (1) Internal Revenue Service Form W-8ECI with respect to payments to be received by it as a beneficial owner and (2) Internal Revenue Service Form W-8IMY (together with required
accompanying documentation) with respect to payments to be received by it on behalf of the Lenders, and shall update such forms periodically upon the reasonable request of the Borrowers. Notwithstanding any other provision of this clause (g),
the Administrative Agent shall not be required to deliver any form that such Administrative Agent is not legally eligible to deliver.
(h)
For the avoidance of doubt, the term”“
applicable law”” shall, for purposes of this Section 3.01, 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 and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 3.02. [Reserved]. .
Section 3.03. Alternate Rate of Interest.
.
(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 3.03 if
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) (A) prior to commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not
exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including, because the Term SOFR Reference Rate is not available or published on a current basis) for such Interest Period or (B) at any time, that
adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR or (ii) the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any
Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period or (B) at any applicable time as a result of the application of this Section 3.03, Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing, then the Administrative Agent shall give notice thereof to the Parent Borrower and the Lenders through Electronic System as provided in Section 10.01 as promptly as
practicable thereafter and, until (x) the Administrative Agent notifies the Parent Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Parent
Borrower delivers a new Committed Loan Notice in accordance with the terms of Section 2.02, any Committed Loan Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and
any Committed Loan Notice that requests a Term Benchmark Borrowing shall instead be deemed to be a Committed Loan Notice or a Committed Loan Notice to be repaid or converted into a Base Rate Borrowing if the Adjusted Daily Simple SOFR also is the
subject of this Section 3.03(a); provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan is
outstanding on the date of the Parent Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.143.03(a) with respect to a Relevant Rate applicable to such Term
Benchmark Loan, then until
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(x) the Administrative Agent notifies the Parent Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the
Parent Borrower delivers a new Committed Loan Notice in accordance with the terms of Section 2.02 or a new Committed Loan Notice in accordance with the terms of Section 2.02, any Term Benchmark Loan shall on the last day of
the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, a Base Rate Loan if the Adjusted Daily Simple SOFR also is the
subject of
Section
2.143.03
(a)(i) or (ii) above, on such day.
(b) Notwithstanding anything to
the contrary herein or in any other Loan Document, (and any Swap Contract evidencing Obligations shall be deemed not to be a “Loan Document” for purposes of this Section 3.03), if a Benchmark Transition Event and its related
Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of
“Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark
settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of
“Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New
York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Parent Borrower without any amendment to, or further action or consent of any other party to, this Agreement
or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make
Benchmark Replacement Conforming Changes from time to time in consultation with the Parent Borrower and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming
Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d)
The Administrative Agent will promptly notify the Parent Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark
Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination,
decision or election that may be made by the Administrative Agent, or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.03, including any determination with respect to a tenor, rate or adjustment or of the
occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and
without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.03.
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(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any
time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or
other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement
or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such
time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a
Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of
“Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the
Parent
Borrower’sBorrower’s
receipt of notice of the commencement of a Benchmark Unavailability Period, the Parent Borrower may revoke any request for a Term Benchmark Borrowing of, conversion to or continuation of Term
Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Parent Borrower will be deemed to have converted any request for a Term Benchmark Borrowing into a request for a Borrowing of or
conversion to a Base Rate Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor,
the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Parent
Borrower’sBorrower’s
receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement
is implemented pursuant to this Section 3.03, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the
Administrative Agent to, and shall constitute, Base Rate Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day.
Section 3.04.
Funding Losses Funding
Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from
any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan;
(b) any failure by the Borrowers (for a
reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan (other than a Base Rate Loan) on the date or in the amount notified by the Borrowers; or
(c) any payment by the Borrowers of any Loan (or interest due thereon or drawings under any Letter of Credit) denominated in Euro or an
Alternative Currency in a different currency;
including any loss or expense 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.
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For purposes of calculating amounts payable by the Borrowers to the Lenders under this
Section 3.04, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for such currency for a
comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
Section 3.05.
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 Parent Borrower setting
forth in reasonable detail the calculation of the additional amount or amounts to be paid to it hereunder which shall be conclusive in the absence of demonstrable error. In determining such amount, such Agent or such Lender may use any reasonable
and customary averaging and attribution methods.
(b) With respect to any Lender’s claim for compensation for any amounts under
Sections 3.01, 3.02, 3.03 or 3.04 the Borrowers shall not be required to compensate such Lender for any amount incurred more than one hundred eighty (180) days prior to the date that such Lender notifies the
Borrowers 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.
(c) If the obligation of any Lender to make or continue any Term Benchmark Loan or to convert Base Rate Loans into Term
Benchmark Loans shall be suspended pursuant to Section 3.06(b) hereof, such Lender’s applicable Term Benchmark Loans or shall be automatically converted into Base Rate Loans denominated in Dollars (or, if such conversion is not
possible, repaid) on the last day(s) of the then current Interest Period(s) for such Term Benchmark 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 or 3.03 hereof that gave rise to such conversion no longer exist:
(i) to the extent that such Lender’s Term Benchmark Loans have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender’s applicable Term Benchmark Loans shall be applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as Term Benchmark
Loans shall be made or continued instead as Base Rate Loans (if possible), and all Base Rate Loans of such Lender that would otherwise be converted into Term Benchmark Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to the Parent Borrower (with a copy to the Administrative Agent) that the circumstances specified in SectionsSection
3.03 hereof that gave rise to the conversion of any of such Lender’s Term Benchmark Loans pursuant to this Section 3.05 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Term Benchmark Loans made by other Lenders under the applicable Term 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 Term Benchmark Loans to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding Term Benchmark 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 Term Facility.
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(e) Notwithstanding anything to the contrary in this Article III, no Lender shall
demand compensation pursuant to Sections 3.01 or
3.03 if it shall not at the time be the general policy or practice of such Lender to demand such compensation in substantially the same manner as applied to other similarly situated borrowers under comparable syndicated credit facilities.
(f) Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Sections 3.01,
3.02 or 3.03 with respect to such Lender, it will, if requested by the Parent Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such
event; provided that such designation is made on such terms that such Lender and its lending office suffer no material disadvantage (as reasonably determined by such Lender in good faith), with the object of avoiding the consequence of the
event giving rise to the operation of any such section.
Section 3.06. Replacement of Lenders under Certain Circumstances. .
(a) If at any time (i) any Lender requests reimbursement for amounts owing pursuant to Section 3.01 or
Section 3.03 as a result of any condition described in such Sections and Lender has declined or is unable to designate a different lending office in accordance with Section 3.01(e) or any Lender ceases to make Term Benchmark
Loans as a result of any condition described in
Section 3.02 or Section 3.03, (ii) any Lender becomes a
Defaulting Lender, (iii) any Lender becomes a Non-Consenting Lender or (iv) any Lender becomes a Non-Extending Lender, then the Borrowers may, on prior written notice to the Administrative Agent and such Lender, replace such Lender by
requiring 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 Borrowers in such instance) all of its rights and obligations under this Agreement (or, with
respect to clause (iii) and clause (iv) above, all of its rights and obligations with respect to the Class of Loans or Commitments that is the subject of the related consent, waiver or amendment) to one or more Eligible
Assignees (provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrowers 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 3.03 or payments required to be made pursuant to Section 3.01, 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 or a Non-Extending Lender, the applicable Eligible Assignees shall have agreed to the applicable departure, waiver or amendment of the Loan Documents).
(b) Any Lender being replaced pursuant to Section 3.06(a) above shall (i) execute and deliver an Assignment and Assumption
with respect to such Lender’s Commitment and outstanding Loans (provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the
Register) and (ii) deliver Notes, if any, evidencing such Loans to the Borrowers 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 Commitments and outstanding Loans, (B) all obligations of the Loan Parties owing to the assigning Lender relating to the Loan Documents and participations so assigned shall be paid in full by the assignee Lender or the
Loan Parties (as applicable) to such assigning Lender concurrently with such assignment and assumption, together with any amounts owing to the assigning Lender (other than a Defaulting Lender) under Section 3.04 as a consequence of such
assignment and (C) upon such payment and, if so requested by the assignee Lender, the assignor Lender shall deliver to the assignee Lender the appropriate Notes executed by the Borrowers, 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.
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(c) [Reserved]
(d) In the event that (i) the Borrowers or the Administrative Agent have 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 all affected Lenders 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 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.”
(e) Notwithstanding anything herein to the contrary, each party hereto agrees that any
assignment pursuant to the terms of this Section 3.06 may be effected pursuant to an Assignment and Assumption executed by the Borrowers, the Administrative Agent and the assignee and that the Lender making such assignment need not be a
party thereto.
Section 3.07. 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 perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Credit Extension or to
determine or charge interest rates based upon the Term Benchmark or Adjusted Daily Simple SOFR or Daily Simple SOFR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect
to any such Credit Extension or continue Term Benchmark Loans or to convert Base Rate Loans to Term Benchmark Loans shall be suspended, and (ii) 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 Benchmark 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 the Term Benchmark component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term Benchmark Loans 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 Benchmark component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Term Benchmark Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term Benchmark Loans and (y) if such notice asserts the illegality of such Lender determining or
charging interest rates based upon the Term Benchmark, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Term Benchmark 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 the Term Benchmark. Upon any such prepayment or conversion, the Borrowers shall also pay accrued
interest on the amount so prepaid or converted.
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Section 3.08.
Survival
Survival. All of the Borrowers’ obligations under this Article III shall survive termination of
the Term Commitments and repayment of all other Obligations hereunder and any assignment of rights by or replacement of a Lender.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
Section 4.01. Conditions to Closing Date. The obligation of each Lender to make its initial Credit Extension hereunder is subject
to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The
Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (which may be delivered via email) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of
the signing Loan Party (other than in respect of (a)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty from each of the Loan Parties listed on the signature pages
thereto;
(ii) a Note executed by the Borrowers in favor of each Lender that has requested a Note at least five
(5) Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A
required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents or, in the case of clause (A) below, the Closing
Date Intercreditor Agreement (as defined in this Agreement prior to giving effect to Amendment No. 2));
(A) certificates, if any, representing the pledged equity referred to
therein, accompanied by undated stock powers, if applicable, executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral 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 and Collateral Agent;
(iv) such certificates, copies of Organization Documents of the Loan Parties, resolutions or other action and incumbency
certificates 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;
(v) legal opinions, in customary form, from (i) Kirkland & Ellis LLP, as New York and Delaware counsel to the
Loan Parties, (ii) Greenbaum, Rowe, Smith & Davis LLP, as special New Jersey counsel to the Loan Parties, and (iii) Hunton Andrews Kurth LLP, as special Virginia and North Carolina counsel to the Loan Parties;
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(vi) a certificate signed by a Responsible Officer of the Parent Borrower
certifying that the conditions set forth in clause (h) below is satisfied; and
(vii) a certificate attesting
to the Solvency of the Parent Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transactions, from Parent Borrower’s chief financial officer or other officer with equivalent duties.
(b) The Parent Borrower shall have paid all fees and other amounts due and payable to the Lead Arrangers and the Administrative Agent in
connection with this Agreement, including reimbursement or payment of reasonable and documented costs and expenses actually incurred by the Lead Arranger or Administrative Agent in connection with this Agreement, including the reasonable fees,
expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in the case of expenses, to the extent invoiced at least three (3) Business Days prior to the Closing Date.
(c) The Closing Date Intercreditor Agreement
(as defined in this Agreement prior to giving effect to Amendment No. 2) shall have been duly executed and delivered by each Loan Party thereto.
(d) The Lead Arrangers
shall have received Audited Parent Borrower Financial Statements and the Unaudited Parent Borrower Financial Statements.
(e) Prior to or
substantially simultaneously with the initial Borrowing hereunder on the Closing Date, the Refinancing shall have occurred.
(f) The
Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrowers and the Guarantors as has been reasonably requested in
writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including without limitation the PATRIOT Act and, to the extent required by the Beneficial Ownership Regulation, a Beneficial Ownership Certification.
(g) Prior to or substantially concurrently with the initial Borrowing hereunder, the Merger shall be consummated, in all material respects in
accordance with the terms of the Merger Agreement as in effect on January 7, 2022, without giving effect to any amendments, consents or waivers that are materially adverse to the Lenders or the Lead Arrangers, without the prior consent of the
Lead Arrangers (such consent not to be unreasonably withheld, delayed, denied or conditioned and provided that the Lead Arrangers shall be deemed to have consented to such amendment, consent or waiver unless they shall object thereto within three
(3) Business Days after written notice of such amendment, consent or waiver) (it being understood that (a) any increase in the purchase price of, or consideration for, the Merger is not materially adverse to the interests of the Lenders or
the Lead Arrangers to the extent any such increase is pursuant to a working capital or other purchase price adjustment or not funded by additional indebtedness (other than permitted Revolving Credit Loans), (b) any reduction of 10% or less of
the purchase price of, or consideration for, the Merger is deemed to be not materially adverse to the interests of the Lenders and the Lead
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Arrangers, (c) any reduction of more than 10% of the purchase price of, consideration for, the Merger is deemed to be not materially adverse to the interests of the Lenders and the Lead
Arrangers so long as any such reduction above 10% of the purchase price of, or consideration for, the Merger is pursuant to a working capital or other purchase price adjustment or reduces dollar-for-dollar the commitments under the Term Facility and
(d) any amendment to the definition of “Material Adverse Effect” is materially adverse to the interests of the Lenders and the Lead Arrangers).
(h)(i) The Specified Merger Agreement Representations shall be true and correct in all material respects to the extent required by the terms
of the definitions thereof and (ii) the Specified Representations shall be true and correct in all material respects on the Closing Date, in each case, and unless such representations relate to an earlier date, in which case, such
representations shall have been true and correct in all material respects as of such earlier date.
(i) Since the date of the Merger
Agreement there shall have been no effect, change, event, fact, circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (as defined in the Merger Agreement as in
effect on January 7, 2022) and is continuing on the Closing Date.
For purposes of determining whether the Closing Date has occurred,
each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the
Administrative Agent or such Lender, as the case may be, unless such Lender has notified the Administrative Agent of any disagreement prior to the Closing Date.
Notwithstanding anything herein to the contrary, it is understood that, other than with respect to (a) the execution and delivery by the
Borrowers and the Guarantors of the Security Agreement and (b) Filing Collateral or Stock Certificates (each as defined below), to the extent any Lien on any Collateral is not or cannot be provided and/or perfected on the Closing Date after the
Borrowers’’
use of commercially reasonable efforts to do so or without undue burden or expense, 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 perfected after the Closing Date in accordance with Section 6.12; provided that the Borrowers shall have delivered all Stock Certificates (with respect
to Apria and its Subsidiaries, to the extent received from Apria after the Borrower’sBorrower’s use of commercially reasonable efforts to receive such
certificates or otherwise without undue burden or expense). For purposes of this paragraph, “Filing Collateral” means Collateral, including Collateral constituting investment property, for which a security interest can be perfected by
filing a UCC. “Stock Certificates” means certificates representing Capital Stock of the Borrowers, and the Wholly Owned Subsidiaries of the Loan Parties (other than Excluded Subsidiaries) (provided that the Borrowers shall not be
required to deliver Stock Certificates constituting Excluded Property or Excluded Equity) for which a security interest can be perfected by delivering such certificates, together with undated stock powers or other appropriate instruments of transfer
executed in blank for each such certificate.
Section 4.02. Conditions to All Credit Extensions. The obligation of each
Lender to honor any 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 Term Benchmark Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other
Loan Document shall be true and correct in all material respects
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on and as of the date of such Credit Extension; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct
in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct
(after giving effect to any qualification therein) in all respects on such respective dates; provided, further, that in the case of an Incremental Term Commitment the proceeds of which will be used to finance a Limited Condition
Transaction for which an LCT Election has been made, the foregoing will be limited to the Specified Representations.
(b) No Default shall
exist, or would result from such proposed Credit Extension or from the application of the proceeds therefrom; provided, that, in the case of any Incremental Term Commitments, the proceeds of which will be used to finance a Limited Condition
Transaction for which an LCT Election has been made, this clause (b) shall be limited to Specified Events of Default.
Each
Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Term Benchmark Loans) submitted by the Borrowers shall be subject to applicable delivery requirements in
Section 2.02, and be deemed to be a representation and warranty that the applicable conditions specified in Section 4.02(a) and, if applicable, Section 4.024.02(b) have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Agents and the Lenders on the Closing Date and on the date of each subsequent Credit Extension
that:
Section 5.01. Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each other Restricted
Subsidiary (a) is a Person duly incorporated, organized or formed, and validly existing and, where applicable, in good standing 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 and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, (c) is duly qualified and, where applicable, in good standing
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 material compliance with all Laws (including applicable portions of the USA PATRIOT Act and applicable anti-money laundering laws),, orders, writs, injunctions and orders 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 Parent Borrower), (b))(i), (c), (d) or (e), to the extent that failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.02.
Authorization; No ContraventionAuthorization; 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 TransactionTransactions
, (a) have been duly authorized by all necessary corporate or other organizational action and (b) do not and will not (i) contravene the terms of any of such Person’s Organization
Documents, (ii) conflict with or result in any breach or contravention of, or require any payment to be made under (A) any Contractual Obligation exceeding the Threshold Amount to which such Person is a party or affecting such Person or
the properties of such Person or any of its Subsidiaries or (B) any material order,
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injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, (iii) result in the creation of any Lien (other than under the
Loan Documents and Liens subject to the Closing
DatePari Passu First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other
Acceptable Intercreditor Agreement) or (iv) violate any material Law; except (in the case of clauses
(b))
(ii) and
(b))
(iv)), to the extent that such conflict, breach, contravention, payment or violation could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.03. Governmental Authorization; Other Consents. No 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 Transaction, (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
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 and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 5.04.
Binding EffectBinding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is 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 party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.
Section 5.05. Financial Statements; No Material Adverse Effect.
.
(a) The Audited Parent Borrower Financial Statements fairly present in all material respects the consolidated financial condition of the
Parent Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, except as otherwise disclosed to the Administrative Agent prior to the Closing Date, and in the case of the Audited Parent
Borrower Financial Statements, prepared in accordance with GAAP consistently applied throughout the periods covered thereby.
(b) Since December 31, 2021the
Amendment No. 2 Effective Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse
Effect.
Section 5.06.
LitigationLitigation. Except as set forth on Schedule 5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Parent Borrower, threatened in writing or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against the Parent Borrower or any Restricted Subsidiary or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
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Section 5.07. Ownership of Property; Liens.
.
(a) Each Loan Party and each of its Subsidiaries has good and valid title to, or valid leasehold interests in, or easements or other limited
property interests in, all property material to the ordinary conduct of its business, free and clear of all Liens other than Permitted Liens, except where the failure to have such title or other interest could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) Other than as set forth in Schedule 1.01E, there are no fee-owned
real properties owned by any Loan Party as of the Closing Date and located in the United States with a fair market value, as of the Closing Date, in excess of $15,000,000 individually.
Section 5.08.
Environmental MattersEnvironmental
Matters. Except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) there are no pending or, to the knowledge of the Parent Borrower, threatened claims, actions, suits, notices of violation, notices of
potential responsibility, disputes or proceedings by or involving any Loan Party or any of their Subsidiaries alleging potential liability or responsibility for violation
of, or otherwise relating to, any Environmental Law;
(b)(i) there is no asbestos or asbestos-containing material on any property currently owned, leased or operated by any Loan Party or any of
their Subsidiaries; and (ii) there has been no Release of Hazardous Materials at, on, under or from any such property, in each case of (i) and (ii) which would reasonably be expected to give rise to any Environmental
Liability of any Loan Party or any of their Subsidiaries;
(c) neither any Loan Party nor any of their Subsidiaries is undertaking, either
individually or together with other persons, any investigation or response action relating to any actual or threatened Release of Hazardous Materials at any location,
either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any
Environmental Law;
(d) all Hazardous Materials transported from any property currently or, to the knowledge of the Parent Borrower
or its Subsidiaries, formerly owned, leased or operated by any Loan Party or any of their Subsidiaries for off-site disposal have been disposed of in compliance with all Environmental Laws;
(e) none of the Loan Parties nor any of their Subsidiaries is subject to or has contractually or by operation of Law assumed any Environmental
Liability of any third party; and
(f) the Loan Parties and each of their Subsidiaries and their respective businesses, operations and
properties are in compliance with all Environmental Laws.
Section 5.09.
TaxesTaxes. The Parent Borrower and each Restricted Subsidiary have timely filed all federal, provincial, state, municipal, foreign and other Tax returns and reports required to be filed, and have timely paid all federal,
provincial, state, municipal, foreign and other Taxes levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted
and for which adequate reserves have been provided in accordance with GAAP and, except for failures to file or pay as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. There are no Tax
audits, deficiencies, assessments or other claims with respect to the Parent Borrower or any Restricted Subsidiary that could, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
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Section 5.10. Compliance with ERISA.
.
(a) Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Plan is
in compliance with the applicable provisions of ERISA, the Code and other federal or state Laws and applicable foreign laws, respectively.
(b)(i) No ERISA Event or similar event with respect to a Foreign Plan has occurred or is reasonably expected to occur; (ii) 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 Section 4201
et seq. or 4243 of ERISA with respect to a Multiemployer Plan; and (iii) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA, except, with respect to
each of the foregoing clauses of this Section 5.10, as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(c) As of the Closing Date, no Loan Party is and no Loan Party will become (1) an employee benefit plan subject to Title I of ERISA,
(2) a plan or account subject to Section 4975 of the Code, (3) an entity deemed to hold Plan Assets of any such plans or accounts, or (4) a “governmental plan” within the meaning of Section 3(32) of ERISA.
Section 5.11. Subsidiaries; Equity Interests. As of the
ClosingAmendment
No. 2 Effective Date, neither the Parent Borrower nor any other Loan Party has any Subsidiaries other than those specifically disclosed in Schedule 5.11, and all of the outstanding
Equity Interests in the Borrowers and the Subsidiaries of the Parent Borrower have been validly issued, are fully paid and, in the case of Equity Interests representing corporate interests, nonassessable and, on the ClosingAmendment No. 2
Effective Date, all Equity Interests owned directly or indirectly by the Parent Borrower or any other Loan Party are owned free and clear of all Liens except (i) those created under the
Collateral Documents, and (ii) those Liens permitted under Section 7.02. As of the ClosingAmendment No. 2 Effective Date, Schedule 5.11 (a) sets
forth the name and jurisdiction of organization or incorporation of each Subsidiary, (b) sets forth the ownership interest of the Parent Borrower, the Borrowers and any of their Subsidiaries in each of their Subsidiaries, including the
percentage of such ownership and (c) identifies each Person the Equity Interests of which are required to be pledged on the ClosingAmendment No. 2 Effective Date pursuant to the Collateral and
Guarantee Requirement.
Section 5.12. Margin Regulations; Investment Company Act.
.
(a) No Loan Party is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U or Regulation
X of the FRB.
(b) None of the Parent Borrower or any
Restricted SubsidiaryNo Loan Party is or is
required to be registered as an “investment company” under the Investment Company Act of 1940, as amended.
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Section 5.13.
DisclosureDisclosure. No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent, any Lead Arranger or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains when furnished any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto); provided
that, with respect to projected financial information, the Parent Borrower and the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being
understood that (i) such projections are as to future events and are not to be viewed as facts and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Parent Borrower and the Borrowers,
(ii) no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and (iii) such
differences may be material.
Section 5.14. Intellectual Property; Licenses, Etc.
Each of the Loan Parties and the other Restricted Subsidiaries own, license or possess the right to use, all of the trademarks, service marks,
trade names, domain names, copyrights, patents, patent rights, technology, software, know-how, database rights, design rights and other intellectual property rights, including registrations and applications for registration thereof, all rights of
priority thereto, and all rights to sue for any infringement, misappropriation or violation, and all income, royalties, damages and payments due or payable, therefore (collectively, “IP Rights”) that are used in or reasonably
necessary for the operation of their respective businesses as currently conducted, and, to the knowledge of the Parent Borrower, without violation of the rights of any Person, except to the extent such violation or failure to own, license, or
possess, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any such IP Rights, is pending or, to the knowledge of the Parent Borrower, threatened against any
Loan Party or Subsidiary, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.15.
SolvencySolvency. On the Closing Date after giving effect to the TransactionTransactions, the Parent Borrower and its Subsidiaries, on a
consolidated basis, are Solvent.
Section 5.16.
Collateral DocumentsCollateral
Documents. The Collateral Documents are 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 and to the extent intended to be created thereby, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity, and (i) when all appropriate filings or
recordings are made in the appropriate offices as may be required under applicable Laws (which filings or recordings shall be made to the extent required by any Collateral Document) 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 required by any Collateral Document or the
Closing
DatePari Passu First Lien Intercreditor
Agreement, the Junior Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement, as
applicable), the Liens created by such Collateral Documents will constitute so far as possible under relevant Law fully perfected Liens on (with the priority set forth in the Closing DatePari Passu
First Lien Intercreditor Agreement), the Junior Lien
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Intercreditor Agreement or any other Acceptable Intercreditor
Agreement, as applicable), and security interests in, all right, title and interest of the Loan Parties in such Collateral to the extent perfection can be obtained by filing financing statements
or upon the taking of possession or control, in each case subject to no Liens other than Permitted Liens.
Section 5.17. Use of ProceedsUse of Proceeds. The proceeds of the Term Loans and other Credit Extensions made on the Closing Date shall be used on the Closing Date solely (i) to consummate the Transactions, (ii) to pay the Transaction Expenses and
(iii) for the Refinancing.
Section 5.18. Sanctions Laws and Regulations and Anti-Corruption Laws.
.
(a) Each of the Parent Borrower and its Subsidiaries is in compliance, in all material respects, with the Sanctions Laws and Regulations, the
FCPA and other applicable anti-corruption laws. No Borrowing or use of proceeds of any Borrowing will violate or result in the violation of any Sanctions Laws and Regulations applicable to any party hereto.
(b) None of (I) the Borrowers or any other Loan Party or (II) a Restricted Subsidiary that is not a Loan Party or, to the knowledge of the
Parent Borrower, any director, manager, officer, agent or employee of the Parent Borrower or any of its Restricted Subsidiaries, in each case, is (i) a Person (or owned 50% or more by one or more Persons or under Control of a Person) on the
list of “Specially Designated Nationals and Blocked Persons” or the target of the limitations or prohibitions under any Sanctions Laws and Regulations, or (ii) a Person located, organized, or resident in a country or territory that
is the subject of comprehensive sanctions under Sanctions Laws and Regulations (currently, Crimea, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic).
(c) No part of the proceeds of any Loan will be used for any improper payments, directly or, to the knowledge of the Parent Borrower,
indirectly, to any governmental official or employee, political party, official of a political party, candidate for political office, or any other party (if applicable) in order to obtain, retain or direct business or obtain any improper advantage,
in each case in violation of the FCPA or any applicable similar
laws, rules or regulations issued, administered or enforced by any Governmental Authority having jurisdiction over the Parent Borrower or the Borrowers.
Section 5.19.
Closing Date LCT Representations.
The Parent Borrower represents that, to the extent required,
(i) it has made a “limited conditionality election in accordance with the 2021 Indenture with respect to the Transactions and the LCT Test Date (as defined in the 2021 Indenture) shall be the date of the Merger Agreement and
(ii) after giving effect to the preceding clause (i), the Term Facility (and any Senior Notes issued pursuant to the 2022 Indenture) is permitted under the Indentures and the Existing OMI Credit Agreement (collectively, the “LCT Representations”).
ARTICLE VI
AFFIRMATIVE COVENANTS
From and after the Closing Date and for so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
which is accrued and payable shall remain unpaid or unsatisfied (other than contingent indemnification obligations not yet due), the Parent Borrower shall, and shall (except in the case of the covenants set forth in Section 6.01,
Section 6.02 and Section 6.03) cause each Restricted Subsidiary to:
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Section 6.01.
Financial Statements Financial Statements. Deliver to the Administrative Agent for prompt further distribution to each Lender:
(a) as soon as available, but in any event not to exceed the later of (i) ninety (90) days after the end of each fiscal year of the
Parent Borrower and (ii) the date required by the SEC reporting requirements (as such may be extended by the SEC), a consolidated balance sheet of the Parent Borrower 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 an 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 or exception or any qualification or exception as to the scope of such audit (other than as a result of (x) current debt maturity in
the final year of any Indebtedness permitted under Section 7.01 or (y) a prospective or actual default in respect of any financial maintenance covenant in any agreement
governing Indebtedness of the Parent Borrower or any Restricted Subsidiary);
(b) as soon as available, but in any event not to
exceed the later of (i) forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Parent Borrower and (ii) the date required by the SEC reporting requirements (as such may be
extended by the SEC), a consolidated balance sheet of the Parent Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (i) consolidated statements of income or operations for such fiscal quarter and for the portion
of the fiscal year then ended and (ii) consolidated statements of cash flows for the portion of the fiscal year then ended, setting forth in comparative form the income statement figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Parent Borrower as fairly presenting in all material respects the financial condition, results of
operations, stockholders’ equity and cash flows of the Parent Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes; and
(c) simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 6.01(a) and
(b) above (i) the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements and (ii) a customary
management discussion and analysis of operating results.
Notwithstanding the foregoing, the obligations in paragraphs (a),
(b) and (c) of this Section 6.01 may be satisfied with respect to financial information of the Parent Borrower and its Subsidiaries by furnishing the Parent Borrower’s Form 10-K or 10-Q, as applicable, filed
with the SEC; provided that, 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 an independent registered public
accounting firm of nationally recognized standing, which report and opinion, subject to the same exceptions set forth above, shall be prepared in accordance with generally accepted auditing standards.
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Section 6.02.
Certificates; Other
InformationCertificates; Other Information. Deliver to the Administrative Agent for prompt further
distribution to each Lender:
(a) no later than five (5) Business Days after the delivery of the financial statements referred
to in Section 6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible Officer of the Parent Borrower;
(b) promptly after the same are publicly available, copies of all annual, regular, periodic and special reports and registration statements
which the Parent Borrower 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 in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(c) promptly after the furnishing thereof, copies of any material requests or material notices received by any Loan Party or any of its
Restricted Subsidiaries (other than in the ordinary course of business) that would reasonably be expected to result in a Material Adverse Effect;
(d) together with the delivery of the Compliance Certificate pursuant to Section 6.02(a), (i) a report setting forth the information
required by Section 3.03 of the Security Agreement or confirming that there has been no change in such information since the Closing Date or the date of the last Compliance Certificate, (ii) [reserved], (iii) a list of
Subsidiaries that identifies each Subsidiary as a Material Subsidiary, Unrestricted Subsidiaries or an Immaterial Subsidiary as of the last day of the period covered by such Compliance Certificate or a confirmation that there is no change in such
information since the later of the Closing Date or the date of the last such list and (iv) such other information required by the Compliance Certificate; provided that delivery of the items listed in clauses (i) and
(iii) above shall not be require to extent there have been no changes with respect thereto since such items were last delivered;
(e) promptly, (x) such additional information regarding the business, legal, financial or corporate affairs of any Loan Party or any
Material Subsidiary, 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 and (y) information and documentation reasonably
requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and 31 C.F.R. § 1010.230 (to the extent
applicable).
Documents required to be delivered pursuant to Section 6.01(a), (b) and (c), , or Section 6.02(a),
Section 6.02(b) or Section 6.02(c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent Borrower posts
such documents, or provides a link thereto, on the website of the Parent Borrower at httphttps://owens-minorwww.accendrahealth
.com or any other website address provided to the Administrative Agent by the Parent Borrower; (ii) on which such documents are posted on EDGAR or (ii) on which such documents are posted
on the Parent Borrower’s 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 Parent 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 Parent Borrower shall notify (which may be by facsimile or electronic mail) the Administrative
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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.
The Parent Borrower and the Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Lead Arrangers will make available
to the Lenders materials and/or information provided by or on behalf of any Borrower hereunder (collectively, the “Borrower Materials”) by posting such Borrower Materials on IntraLinks or another similar electronic system (the
“Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that they will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to
treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.08); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Section 6.03. Notices
Notices. Promptly after a Responsible Officer obtains actual knowledge thereof, notify the Administrative Agent
for prompt further distribution to each Lender:
(a) of the occurrence of any Default, which notice shall specify the nature
thereof, the period of existence thereof and what action the Parent Borrower proposes to take with respect thereto;
(b) of any litigation
or governmental proceeding (including, without limitation, pursuant to any Environmental Laws) pending against the Parent Borrower or any of the Restricted Subsidiaries that could reasonably be expected to be determined adversely and, if so
determined, to result in a Material Adverse Effect; and
(c) of the occurrence of any ERISA Event or similar event with respect to a
Foreign Plan that could reasonably be expected to have a Material Adverse Effect.
Section 6.04. Maintenance of Existence .
(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization or incorporation and (b) take all reasonable action to maintain all rights (including IP Rights),
privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except in the case of clauses (a) (other than with respect to the Parent Borrower) and (b),
(i) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04 or Section 7.05.
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Section 6.05. Maintenance of Properties . Except if the failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect the Mortgaged Property and
all property and equipment material to the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and
(b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice.
Section 6.06. Maintenance of Insurance . 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 Parent Borrower and its Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons. If any portion of any 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 Flood Insurance Laws, then, to the extent required by the Flood Insurance Laws, the Parent 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 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 reasonably acceptable to the Administrative Agent. Except as otherwise contemplated by an Acceptable Intercreditor Agreement, any such insurance (excluding business
interruption insurance) maintained in the United States shall name the Collateral Agent as additional insured and lenders loss payable, as applicable. As a condition precedent to any amendment to this Agreement pursuant to which any increase,
extension, or renewal of Loans is contemplated, the Parent Borrower shall cause to be delivered to the Administrative Agent 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 required by this Section
6.06.
Section 6.07. Compliance with Laws . Comply in all respects with the requirements of all Laws and all orders, writs, injunctions,
decrees and judgments applicable to it or to its business or property (including without limitation Environmental Laws, ERISA, Sanctions Laws and Regulations and FCPA and other applicable anti-corruption laws), except if the failure to comply
therewith could not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
Section 6.08.
Books and Records . Maintain proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial
transactions and matters involving the assets and business of the Parent Borrower or such Restricted Subsidiary, as the case may be.
Section 6.09.
Inspection Rights Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit
and visually inspect any of its properties and to discuss
its affairs, finances and accounts with its directors, managers, officers, and independent public accountants, all at the reasonable expense of the Borrowers and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Borrowers; provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the Administrative Agent on behalf
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of the Lenders may exercise rights of the Administrative Agent and the Lenders under this Section 6.09 and the Administrative Agent shall not exercise such rights more often than two
(2) times during any calendar year absent the existence of an Event of Default and only one (1) such time shall be at the Borrowers’ 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 Borrowers at any time during normal business hours and upon reasonable advance notice. The Administrative Agent and
the Lenders shall give the Borrowers the opportunity to participate in any discussions with the Borrowers’ independent public accountants. Notwithstanding anything to the contrary in this Section 6.09, none of the Parent Borrower
or any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (i) that 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 (iii) that is subject to attorney client or similar
privilege or constitutes attorney work product.
Section 6.10. Covenant to Guarantee Obligations and Give Security . At the
Borrowers’ expense, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) upon the formation or acquisition of any new direct or indirect Wholly Owned Subsidiary (in each case, other than an Excluded Subsidiary)
by any Loan Party, the designation in accordance with Section 6.13 of any existing direct or indirect Wholly Owned Subsidiary as a Restricted Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary or designation of
any Subsidiary as a Guarantor pursuant to the definition of Guarantors:
(i) within sixty (60) days after such
formation, acquisition, designation or occurrence or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A) cause each such Restricted Subsidiary to duly execute and deliver to the Administrative Agent or the Collateral Agent (as
appropriate) pledges, guarantees, assignments, Security Agreement Supplements and other security agreements and documents or joinders or supplements thereto, as reasonably requested by and in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent (to the extent applicable, consistent with the Security Agreement and other Collateral Documents in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee
Requirement;
(B) cause each such Restricted Subsidiary to deliver any and all certificates representing Equity Interests
(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 and (if applicable) instruments
evidencing the Indebtedness held by such Restricted Subsidiary and required to be pledged pursuant to the Collateral Documents, indorsed in blank to the Collateral Agent (or such other applicable Person in accordance with an Acceptable Intercreditor
Agreement); and
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(C) take and cause such Restricted Subsidiary and each direct or indirect
parent of such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action (including the
recording of Mortgages, the filing of financing statements and delivery of stock and membership interest
certificates) 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 with the priority required by the
Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity (regardless of whether enforcement is
sought in equity or at law); and
(ii) within thirty (30) days after such formation, acquisition, designation
or occurrence (or such longer period as the Administrative Agent may agree in its reasonable discretion), cause each such Restricted Subsidiary to furnish to the Administrative Agent a description of the Material Real Properties owned by such
Restricted Subsidiary in detail reasonably satisfactory to the Administrative Agent;
(iii) as promptly as practicable
after the request therefor by the Collateral Agent and to the extent in the Borrowers’ possession, deliver to the Collateral Agent with respect to each Material Real Property, any title reports, title insurance policies and surveys or
applicable environmental assessment reports; provided that with respect to any Foreign Subsidiary the requirements of this Section 6.10 shall be satisfied prior to it becoming a Guarantor; and
(iv) within ninety (90) days after such formation, acquisition, designation or occurrence (or such longer period as the
Administrative Agent may agree in its reasonable discretion), or, if flood due diligence and flood compliance has not been completed within such period, upon confirmation from the Administrative Agent and the Lenders that flood due diligence and
flood compliance as required by Section 6.06 has been completed, with respect to any Material Real Property required to be identified pursuant to the foregoing clause (ii), cause each such Restricted Subsidiary to subject such
Material Real Property to a Lien to the extent required by the Collateral and Guarantee Requirement and take all actions referred to in paragraph (f) of the definition of “Collateral and Guarantee Requirement” and such other
actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien or otherwise in connection therewith.
(b) after the Closing Date, promptly after the acquisition of any Material Real Property by any Loan Party, if such Material Real Property
shall not already be subject to a perfected Lien (subject to Permitted Liens) under the Collateral Documents with the priority required pursuant to the Collateral and Guarantee Requirement and is required to be, the Borrowers shall promptly give
notice thereof to the Administrative Agent and within ninety (90) days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the date of such acquisition, or, if flood due diligence and flood compliance
has not been completed within such period, upon confirmation from the Administrative Agent and the Lenders that flood due diligence and flood compliance as required by Section 6.06 has been completed, shall cause such Material Real
Property to be subjected to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party to take, all actions referred to in paragraph (f) of the definition of
“Collateral and Guarantee Requirement” and such other actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien or otherwise in connection
therewith.
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Section 6.11.
Use of Proceeds Use of Proceeds. The proceeds of the Term Loans made on the Closing Date shall be used on the Closing Date solely
(i) to consummate the Transactions, (ii) to pay the Transaction Expenses and (iii) for the Refinancing. Thereafter, the proceeds of the other Credit Extensions shall be used from time to time to finance working capital, capital
expenditures and other general corporate purposes (including, without limitation, Permitted Acquisitions) of the Parent Borrower and its Subsidiaries (to the extent not inconsistent with the Loan Parties’’ covenants and obligations under this Agreement and the other Loan Documents).
Section 6.12. Further Assurances and Post-Closing
Covenants.
.
(a) Promptly upon reasonable request by the Administrative Agent or the Collateral Agent (i) correct any material defect or error
that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral, and (ii) subject to the limitations set forth in the Collateral and Guarantee
Requirement, 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 or the Collateral Agent may
reasonably request from time to time in order to carry out more effectively the purposes of this Agreement and the Collateral Documents; provided, however, that notwithstanding anything to the contrary contained in this Agreement or
any other Collateral Document, nothing in this Agreement or any other Collateral Document shall require any Borrower or Loan Party to make any filings or take any actions to record or to perfect the Collateral Agent’s security interest in
(i) any IP Rights other than UCC filings and the filing of documents effecting the recordation of security interests in the United States Copyright Office or United States Patent and Trademark Office, or (ii) any non-United States IP
Rights;
(b) Within the time periods specified on Schedule 6.12 hereto (as each may be extended by the Administrative Agent
in its reasonable discretion), complete such undertakings as are set forth on Schedule 6.12 hereto.
Section 6.13.
Designation of Subsidiaries.
.
(a) Subject to Section 6.13(b) below, the Parent Borrower may at any time designate (i) any Restricted Subsidiary (other than a Borrower) as an
Unrestricted Subsidiary
oronly with
the prior written consent of the Required Lenders or (ii) any Unrestricted Subsidiary as a Restricted Subsidiary; provided that immediately before and after such designation, no Event
of Default shall have occurred and be continuing (including without limitation as a result of the Investment and incurrence of Indebtedness and Liens as described below in this clause (a)). The designation of any Restricted Subsidiary as an Unrestricted
Subsidiary shall constitute an Investment by the Parent Borrower or the Borrowers, as applicable, therein at the date of designation in an amount equal to the fair market value of the Parent Borrower’s or the Borrowers’ investment
therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness, Liens or Investments of such Subsidiary existing at such time. For the avoidance of doubt, the Parent Borrower may not designate any Restricted Subsidiary to be an Unrestricted
Subsidiary, and may not otherwise permit any Subsidiary (including any Subsidiary existing on the Amendment No. 2 Effective Date) to be an Unrestricted Subsidiary, in each case, without the prior written consent of the Required
Lenders.
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(b)(i) The
Parent Borrower may not designate aNo Restricted
Subsidiary may be designated as an Unrestricted Subsidiary
unlessif
such Restricted Subsidiary does not havehas legal or beneficial ownership of, or an exclusive license to, any
IP Rights constituting Collateral (other than cash and Cash Equivalents), in each case, that is material
to the business of the Borrowers and
itstheir
Restricted Subsidiaries, taken as a whole and (ii) the Borrowers and itstheir Restricted Subsidiaries shall not be permitted to transfer to any
Unrestricted Subsidiary or Non-Loan Party legal or
beneficial ownership of, or an exclusive license to, any IP Rights constituting Collateral (other than cash and Cash Equivalents), in each case, that is material
to the business of the Borrowers and
itstheir
Restricted Subsidiaries, taken as a whole; provided, that the foregoing shall not be deemed or interpreted to restrict
(i) any exclusive IP Rights licenses granted to a such Restricted Subsidiary for a
legitimate business purpose that is only exclusive with respect to a particular type or field (or types or fields) of usage or a certain territory or group of territories, in each case that does not effectively result in the transfer of beneficial
ownership of such IP Rights or (ii) any non-exclusive license.
Section 6.14. Payment of Taxes . The Parent Borrower will pay and discharge, and
will cause each of the Restricted Subsidiaries to pay and discharge, all Taxes imposed upon it or upon its income or profits, or upon any properties belonging to it, in each case on a timely basis, and all lawful claims which, if unpaid, may
reasonably be expected to become a lien or charge upon any properties of the Parent Borrower or any of the Restricted Subsidiaries not otherwise permitted under this Agreement; provided that neither the Parent Borrower nor any of the Restricted
Subsidiaries shall be required to pay any such Tax or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP or which would not reasonably be
expected, individually or in the aggregate, to constitute a Material Adverse Effect.
Section 6.15. Nature of Business . The
Parent Borrower and its Restricted Subsidiaries will engage only in material lines of business substantially similar to those lines of business conducted by the Parent Borrower and its Restricted Subsidiaries on the Closing Date or any business
reasonably related, complementary or ancillary thereto.
Section 6.16. Maintenance of Ratings . The Parent Borrower shall use
commercially reasonable efforts to maintain (x) a public rating (but no specific rating) for the Term Facility from each of Moody’s and S&P and (y) a public corporate family rating and a public corporate credit rating (but, in
each case, not a specific rating) from each of Moody’s and S&P, respectively, in respect of the Parent Borrower.
ARTICLE VII
NEGATIVE COVENANTS
From and after the Closing Date and so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder which is
accrued and payable shall remain unpaid or unsatisfied (other than contingent indemnification obligations not yet due and payable), the Parent Borrower and the Borrowers shall not, nor shall they permit any of their Restricted Subsidiaries to:
Section 7.01.
Indebtedness
Indebtedness. Create, incur, assume or permit to exist any Indebtedness except:
(a) Indebtedness arising under this Agreement and the other Loan Documents;
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(b)(i) Surviving Indebtedness, that, to the extent in excess of $5,000,000, is listed on
Schedule 7.01(b) and (ii) any Permitted Refinancing of any of the foregoing;
(c) Indebtedness (including purchase money
Indebtedness and obligations under Capitalized Leases) incurred to finance the purchase or lease of fixed assets; provided that the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed an amount
equal to the greater of
(x)
$230,000,00035,000,000
and
(y)
35.010.0
% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis; provided that the Indebtedness incurred pursuant to this clause (c) may not be incurred in connection with any Liability Management Transaction;
(d) Indebtedness (other than for borrowed money) secured by Permitted Liens;
(e)(i) intercompany Indebtedness permitted pursuant to Section 7.03; provided that in the case of such Indebtedness owing
by a Loan Party to a Subsidiary that is not a Loan Party, or in the case of such Indebtedness owing by any Domestic Loan Party to any Foreign Subsidiary, in each case, such Indebtedness shall be subordinated to the Obligations in a manner and to the
extent acceptable to the Administrative Agent; and (ii)Guarantee Obligations with respect to Indebtedness
permitted under this Section 7.01; provided that (A) such Guarantee Obligations are permitted pursuant to Section 7.03, and (B) if the Indebtedness for which the Guarantee Obligations are provided is
subordinated to the Obligations, the Guarantee Obligations shall be subordinated to the guarantee provided pursuant to the Guaranty Agreement on terms at least as favorable to the Lenders as those contained in the subordination of such
Indebtedness; and (iii) intercompany Indebtedness permitted pursuant to Section 7.03(aa); provided further that the Indebtedness incurred pursuant to this clause (e) may not be incurred in connection with any
Liability Management Transaction.
(f) Indebtedness of Securitization Subsidiaries under Qualified Securitization Transactions; provided, that, the aggregate
principal amount of all such Indebtedness at any one time outstanding shall not exceed the greater of (x) $725,000,000 and (y) an amount equal to 85% of the gross book value of200,000,000; provided
further that following the consummation of a Permitted Acquisition or similar Investment, such amount shall be increased by an additional $50,000,000 with respect to any
Receivables, Receivables Related Assets and/or Securitization Receivables subject to such Qualified Securitization Transactions at such
timeacquired in such Permitted Acquisition or similar Investment;
(g)
Hedging Obligations and obligations (contingent or otherwise)
existing or arising under any Swap Contract; provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(h) Indebtedness under (A) the 2014 Indenture, which
Indebtedness is outstanding as of the date hereof, (B) the 2021 Indenture and the 2022 Indenture, in each case which Indebtedness is outstanding as of the date hereof and (C) the Existing OMI Credit Agreement by the Credit Parties in an aggregate outstanding principal amount at any time outstanding not to exceed, in the
case of this sub-clause (C), the sum of $450,000,000, plus the aggregate principal amount of any Incremental Revolving
Commitment, Refinancing Revolving Commitments or Extended
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Revolving Credit Commitments incurred under (and as defined in) the Existing OMI Credit Agreement after the
Closing Date in an aggregate amount permitted to be incurred under the Existing OMI Credit Agreement as in effect on the Closing
DateAmendment No. 2 Effective Date after giving effect to the Amendment No. 2 Transactions,
(B) the First Lien Revolving Credit Facility Agreement, (C)the 2026 First Lien Indenture, (D) the 2026 Second Lien Indenture and, (E) in each case of clauses (A) through (CD), any Permitted Refinancing thereof (or successive Permitted
Refinancings thereof);
(i) Indebtedness consisting of (a) the financing of insurance premiums or (b) take or pay
obligations contained in supply arrangements, in each case, in the ordinary course of business;
(j) other Indebtedness of any member of
the Parent Borrower or any Restricted Subsidiary; provided that the aggregate principal amount of all such Indebtedness at any one time outstanding shall not exceed the greater of (x) $265,000,000170,000,000
and
(y)
4050% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis;
(k) Indebtedness assumed in connection with a Permitted Acquisition or other similar Investment not prohibited hereunder and not created in
contemplation thereof, so long as such Indebtedness would have been permitted to have been incurred under Section 7.01(n);
(l) Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries in respect of letters of credit, bank guarantees,
bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, 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;
(m) Contribution Indebtedness (and any Permitted Refinancing thereof);
(n) (i) so
long as no Event of Default has occurred and is continuing, other Indebtedness of the Parent Borrower or any Restricted Subsidiary in an unlimited amount (including Indebtedness incurred to
finance a Permitted Acquisition or any other similar Investment not prohibited hereunder or of Persons that are
acquired by the Parent Borrower or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Parent Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement (including designating an Unrestricted
Subsidiary as a Restricted Subsidiary)), so long as
(A) the Consolidated Interest Coverage Ratio (calculated on a Pro Forma Basis) as of the last day of the
most recently ended Test Period is not less than 2.00:1.00, (B) if such Indebtedness is secured by any
Liens on the Collateral (other than Liens that are junior to the Liens securing the Obligations), the First
Lienincurred to finance a Permitted Acquisition or any other similar Investment not prohibited
hereunder, either (I) the Total Leverage Ratio (calculated on a Pro Forma Basis but excluding
theany
cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than either
(x)
2.054.00
:1.00 or (y) if such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment
not prohibited hereunder, the First Lienthe Total
Leverage Ratio (calculated on a Pro Forma Basis but excluding
theany
cash proceeds therefrom) immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness; provided, that if such Indebtedness is in the form of Qualifying Term Loans, it shall be subject to the MFN Adjustment (if any, and other than to the extent such
Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged would not otherwise be subject to the
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MFN Adjustments), (B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the
Liens securing the Obligations, the Secured Leverage, or (II) the Consolidated Interest
Coverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than either (x) 2.80:1.00 or (y) if
such Indebtedness is incurred to finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the Secured
Leverageless than the Consolidated Interest
Coverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) immediately
prior to the consummation of such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness and (C) if such Indebtedness is unsecured or secured solely by assets that do not constitute Collateral, the Total
Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom) as of the last day of the most recently ended Test Period is not greater than either (x) 4.10:1.00 or (y) if such Indebtedness is incurred to
finance a Permitted Acquisition or any other similar Investment not prohibited hereunder, the Total Leverage Ratio (calculated on a Pro Forma Basis but excluding the cash proceeds therefrom)
immediately prior to the consummation of such Permitted Acquisition or other similar Investment and the incurrence of such Indebtedness (provided that, with respect to all Indebtedness of this clausethese
clauses (n)(i)(A) and (n)(i)(B), (1) such Indebtedness shall mature no earlier than the Latest Maturity Date or have a Weighted Average Life to Maturity less than the Weighted Average Life to Maturity of the Initial Term B-1 Term Loans; provided that the foregoing requirements of this
clause (1) shall not apply to any Inside Maturity Debt and Qualifying Bridge Facility
(provided that the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than, in the case of
Incremental Term Loans that are Term A Loans, the stated maturity date of the Term A Loans with the latest Maturity Date at such time) and in the case of Incremental Term Loans other than Term A Loans, the stated maturity date of the Term Loans (other than
Term A Loans) with the latest Maturity Date at such time), (2)the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect
market terms and conditions at the time of incurrence or issuance of such Indebtedness (as reasonably determined by the Parent Borrower in good
faith)), (3) upon the effectiveness of any
suchor (C) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness incurred pursuant to Section 7.01(n)(i), except in connection with a Limited Condition Transaction (in
which case no Specified Event of Default shall have occurred and is continuing or would result therefrom), no Event of Default has occurred and is continuing or shall result therefrom and (4) the maximum aggregate principal amount of
Indebtedness that may be incurred pursuant to this
Section 7.01(n) by Non-Loan Parties shall
not exceed the greater of (x) $130,000,000 and (y) 20.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period at any one time outstandingin contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted
Subsidiary or was otherwise acquired by the Parent Borrower or a Restricted Subsidiary) (provided that, with respect to all Indebtedness pursuant to this clause (n)(i)(C), the only obligors with respect to such Indebtedness shall be those Persons
who were obligors of such Indebtedness prior to such Permitted Acquisition or other similar Investment or merger, amalgamation or consolidation, as applicable); and (ii) any Permitted
Refinancing of Indebtedness incurred under the foregoing clause (n)(i);
(o) Indebtedness incurred by a Non-Loan Party (which may be secured, if at all, solely by assets of such Non-Loan Party and which in any event are not Collateral), and
guarantees thereof by a Non-Loan Party, in an aggregate principal amount not to exceed the greater of (x) $130,000,000 and (y) 20.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period at any one time
outstanding;
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(o)
[reserved];
(p)(i) Indebtedness incurred by the Borrowers (which Indebtedness
may be secured by a Lien on the Collateral that is pari passu with, or junior to, the Liens securing the Loans) pursuant to an Acceptable Intercreditor Agreement, to the extent that the Borrowers shall have been permitted to incur the amount
of such Indebtedness pursuant to Section 2.14; provided that (A) subject to Section 1.09, no Specified Event of Default has occurred and is continuing or shall result therefrom, (B) such Indebtedness
(x) if such Indebtedness is in the form of Term A Loans, shall mature no earlier than the Latest Maturity Date of the Term A Loans or have a Weighted Average Life
to Maturity less than the Weighted Average Life to Maturity of the Initial Term A-1 Loans, and (y) if such Indebtedness is in the form of Indebtedness other than Term A Loans, such Indebtedness[reserved], and (y) shall mature no earlier than the Latest
Maturity Date of the Term Loans (other than Term A Loans) or have a Weighted Average Life to Maturity
less than the Weighted Average Life to Maturity of the Initial Term B-1 Loans; provided that the foregoing requirements of this clause (B) shall not apply to any Inside Maturity Debt or any Qualifying Bridge Facility (provided that the terms of such bridge loans provide for
automatic extension of the maturity date thereof to a date that is not earlier than, in the case of Incremental Term Loans that are Term A Loans, the stated
maturity date of the Term A Loans with the latest Maturity Date at such time and in the case of Incremental Term Loans other than Term A Loans, the stated maturity date of the Term Loans
(other than Term A Loans) with the latest Maturity Date at such time), (C) no Restricted
Subsidiary is a guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Subsidiary Guarantor which shall have previously or substantially concurrently guaranteed the Obligations and (D) if such Indebtedness is secured by the Collateral on a pari passu basis with the Initial Term Loans with respect to security and is pari
passu in right of payment, it shall be subject to the MFN Adjustment (if any) (to the extent such Indebtedness constitutes a Qualifying Term Loan)
([reserved] (such Indebtedness incurred pursuant
to this clause (p) being referred to as “Incremental Equivalent Debt”) and (ii) any Permitted Refinancing of Indebtedness incurred under the foregoing clause (p)(i);
(q) (x) Cash Management Obligations, (y) Cash Management Obligations (as defined in the Existing OMI CreditFirst
Lien Revolving Credit Facility Agreement) and (z) other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in
each case incurred in the ordinary course;
(r) Indebtedness to current or former officers, directors, partners, managers,
consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Parent Borrower permitted by Section 7.06 in an aggregate amount not to exceed $3,000,000 at any
one time outstanding;
(s) Indebtedness supported by a Letter of Credit (under and as defined in the Existing OMI CreditFirst
Lien Revolving Credit Facility Agreement) in a principal amount not to exceed the face amount of such Letter of Credit;
(t) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations
provided by the Parent Borrower 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;
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(u) (i) Indebtedness (in the form of senior secured, senior unsecured, senior subordinated,
or subordinated notes or loans) incurred by the Borrowers or any of their Restricted Subsidiaries to the extent that 100% of the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied solely to the prepayment of Term Loans
in accordance with Section 2.05(b)(iii); provided that (A) such Indebtedness shall not mature earlier than the Maturity Date with respect to the relevant Term Loans being refinanced, provided that the foregoing
requirements of this clause (A) shall not apply to any Inside Maturity Debt and any Qualifying
Bridge Facility (provided that the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than,
in the case of Incremental Term Loans that are Term A Loans, the stated maturity date of the Term A Loans with the latest Maturity Date at such time and in the case of Incremental Term Loans other than Term A Loans, the stated maturity date of the Term Loans (other than Term A Loans)
with the latest Maturity Date at such time), (B) as of the date of the incurrence of such Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be shorter
than that of then-remaining Term Loans being refinanced, provided that the foregoing requirements of this clause (B) shall not apply to any
Inside Maturity Debt and any Qualifying Bridge Facility (provided that the terms of such bridge loans
provide for automatic extension of the maturity date thereof to a date that is not earlier than, in the case of Incremental Term Loans that are Term A Loans,
the stated maturity date of the Term A Loans with the latest Maturity Date at such time and in the case of Incremental Term Loans other than Term A Loans, the stated maturity date of the Term
Loans (other than Term A Loans) with the latest Maturity Date at such time), (C) no Restricted
Subsidiary is a borrower or guarantor with respect to such Indebtedness unless such Restricted Subsidiary is a Subsidiary Guarantor which shall have previously or substantially concurrently guaranteed the Obligations, (D)(i) any Lien on the
Collateral securing such Indebtedness shall not be senior in priority to the Lien on the Collateral securing the Term Loans being refinanced and (ii) the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment
or redemption terms or covenants or other provisions applicable only to periods after the maturity date of the Term Loans being refinanced) reflect market terms and conditions on the date of incurrence or issuance of such Indebtedness, as reasonably
determined by the Parent Borrower in good faith, and such Indebtedness shall not participate in mandatory prepayments on a greater than pro rata basis with the Term Loans and (E) the Parent Borrower has delivered to the Administrative
Agent a certificate of a Responsible Officer of the Parent Borrower, together with all relevant financial information reasonably requested by the Administrative Agent, including reasonably detailed calculations demonstrating compliance with
clauses (A), (B), (C) and (D) and (ii) any Permitted Refinancing of Indebtedness incurred under the foregoing clause (u)(i);
(v) Bilateral Letters of Credit;
(w) Indebtedness consisting of obligations of the Parent Borrower or any of its Restricted Subsidiaries under deferred compensation or other
similar arrangements incurred by such Person in connection with the Permitted Acquisitions or any other Investment expressly permitted hereunder;
(x) Indebtedness representing deferred compensation to employees of the Parent Borrower (or any direct or indirect parent of the Parent
Borrower) and its Restricted Subsidiaries incurred in the ordinary course of business;
(y) Indebtedness incurred by the Parent Borrower
or any of its Restricted Subsidiaries in the Transactions, the Amendment No. 2 Transactions, a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case to the extent constituting indemnification obligations or obligations in respect of
purchase price (including earn-outs) or other similar adjustments;
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(z) all premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in clauses (a) through
(y) above or clauses (aa) through (cc) below; and
(aa) Indebtedness in respect of Permitted Debt Exchange Notes incurred pursuant to a Permitted Debt Exchange in accordance with
Section 2.17 and any Permitted Refinancing thereof;
(bb)
obligations in respect of Disqualified Equity Interests; provided that the aggregate principal amount of all such
Indebtedness at any one time outstanding shall not exceed the greater of (x) $35,000,000 and (y) 10% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis; and
(cc)
Indebtedness in respect of Sale Leasebacks; provided that the aggregate principal amount of all such Indebtedness at
any one time outstanding shall not exceed the greater of (x) $35,000,000 and (y) 10% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis; provided further that the Indebtedness incurred pursuant to this clause (cc) may not be incurred in connection with any
Liability Management Transaction.
Notwithstanding anything to the contrary in this Agreement, (a) the aggregate principal amount of all Indebtedness for
borrowed money incurred pursuant to Section 7.01(a) or Section 7.01(h)(B), Section 7.01(h)(C) that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Loans shall not, at any one time outstanding, exceed $1,351,000,000 plus, with respect to any Permitted Refinancing thereof (or successive Permitted Refinancings thereof), any increase permitted under clause (a) of the definition thereof, (b) the aggregate
principal amount of all Indebtedness for borrowed money incurred pursuant to Section 7.01(a) or Section 7.01(h)(B), Section 7.01(h)(C) or Section 7.01(h)(D) that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Loans or the 2026 Second Lien Notes (to the extent then outstanding) shall not, at any
one time outstanding, exceed $2,053,000,000 plus, with respect to any Permitted Refinancing thereof (or
successive Permitted Refinancings thereof), any increase permitted under clause (a) of the definition thereof, and (c) the aggregate principal amount of all Indebtedness for borrowed money incurred by Non-Loan Parties pursuant to
Section 2.14(a), Section 7.01(h)(B), Section 7.01(h)(C), Section 7.01(h)(D), Section 7.01(j), Section 7.01(n)(i) (other than Section 7.01(n)(i)(C)) and Section 7.01(p) shall not, at any one time outstanding,
exceed the greater of (x) $35 million and (y) 10.0% of LTM EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis,
plus with respect to any Permitted Refinancing thereof (or successive Permitted Refinancings thereof), any
increase permitted under clause (a) of the definition thereof; provided that the Indebtedness described in
this clause (c) may not be incurred in connection with any Liability Management Transaction.
For purposes of determining compliance with this Section 7.01, in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Indebtedness described in clauses (a) through (aacc) above, the Borrowers may, in their sole discretion, classify
and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that
(xw) all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.01, (yx) all Indebtedness under the Indentures outstanding as of the date hereofClosing Date or the Amendment No. 2 Effective Date, as applicable,
will be deemed to have been incurred in reliance only on the exception set forth in clause (h) on the Closing Date of this Section 7.01
andon the Amendment No. 2 Effective Date,
(zy) all Indebtedness under the Existing OMI CreditFirst Lien Revolving
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Credit
Facility Agreement will be deemed to have been incurred in reliance only on the exception set forth in clause (h) on the Closing Date of this Section 7.01 on the Amendment No. 2 Effective Date and (z) all Indebtedness under the Existing Qualified Securitization
outstanding as of the Amendment No. 2 Effective Date will be deemed to have been incurred in reliance only on the exception set forth in clause (f) of this Section 7.01 on the Amendment No. 2 Effective Date . The accrual of interest, the accretion of accreted value, the amortization of original issue discount 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 7.01.
Section 7.02. LiensLiens.. Contract, create, incur, assume or permit to exist any Lien with
respect to any of its property, whether now owned or after acquired, except for Permitted Liens.
Section 7.03. InvestmentsInvestments. Make any Investments, except:
(a) Investments by the Parent Borrower or a Restricted
Subsidiary in assets that were Cash Equivalents when such Investment was made;
(b) loans or advances to officers, directors, managers,
partners and employees of Parent Borrower and any Borrower or Restricted Subsidiary in an aggregate principal amount outstanding not to exceed $3,000,000;
(c) asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(d) Investments (i) by any Loan Party in any other Loan Party, (ii) by any Non-Loan Party in any Loan Party,
(iii) by any Non-Loan Party in any other Non-Loan Party and (iv) by any Loan Party in any Non-Loan Party; provided that the aggregate amount of such Investments
by Loan Parties in Non-Loan Parties pursuant to clause
(iv) shall not exceed in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments, (A) the greater of
(x)
$165,000,00050,000,000
and
(y)
25.015.0
% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis (excluding any Investments received in respect of, or consisting of, the transfer or
contribution of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign Subsidiary), plus (B) an amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such
Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made); provided that any such amounts under this clause (B) shall not increase the Available Amount, it being understood that any returns of capital or sale proceeds actually received in cash in respect of any such Investments in excess of
the amount of such Investment valued at cost at the time such Investment was made shall increase the Available Amount (to the extent such excess amount of returns or proceeds would otherwise increase the Available Amount pursuant to the definition
thereof);;
(e) 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;
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(f) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and
Restricted Payments (other than, in each case, by reference to this Section 7.03) permitted under Section 7.01, Section 7.02, Section 7.04, Section 7.05 and Section 7.06,
respectively;
(g) Investments existing on the
ClosingAmendment
No. 2 Effective Date (to the extent in excess of $5,000,0002,500,000, set forth on Schedule 7.03(g)) and any modification,
replacement, renewal, reinvestment or extension of any such Investments; provided that the amount of any Investment permitted pursuant to this
Section 7.03(g) is not increased from the amount of
such Investment on the
ClosingAmendment
No. 2 Effective Date except pursuant to the terms of such Investment as of the
ClosingAmendment
No. 2 Effective Date or as otherwise permitted by this Section 7.03;
(h) Investments in Swap Contracts permitted under Section 7.01(g);
(i) promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05;
(j) the purchase or other acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line of
business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be (or such assets will be contributed to) a Restricted Subsidiary of the Parent Borrower (including as a result of a merger or
consolidation) (each, a “Permitted Acquisition”) and together with any Investments in Restricted Subsidiaries necessary to consummate a transaction otherwise permitted by this clause (j); provided that
(i) except in the case of a Limited Condition Transaction (in which case, compliance with this clause (ij) shall be determined in accordance with
Section 1.09(a)), immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Event of Default shall have occurred and be continuing, (ii) after giving effect to any such purchase
or other acquisition, the Parent Borrower shall be in compliance with the covenants in Section 6.15 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 become Collateral and (B) any such newly created or acquired Restricted Subsidiary (other than an Excluded Subsidiary) shall become Guarantors, in each case in accordance with Section 6.10;
(k) [reserved];
(l) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with
customers consistent with past practices;
(m) Investments (including debt obligations and Equity Interests) received in connection with
the bankruptcy, insolvency 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 upon the foreclosure with respect to
any secured Investment or other transfer of title with respect to any secured Investment;
(n) Investments (as valued at cost at the time
each such Investment is made in the case of Investments made using assets other than cash) and including all related commitments for future Investments, in an amount not exceeding, without duplication, (i) the Available Amount and/or
(ii) the Excluded Contribution Amount;
(o) advances of payroll payments to employees in the ordinary course of business;
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(p) [reserved];
(q) Investments held by a Restricted Subsidiary acquired after the Closing Date or of a corporation or company merged into the Parent Borrower
or merged 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, amalgamation or consolidation;
(r) Guarantee
Obligations of the Parent Borrower or any Restricted Subsidiary in respect of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(s) Investments to the extent that payment for such Investments is made solely with Qualified Equity Interests (other than any Cure Amount, RCF Cure
Amount, or
any Excluded Contribution Amount);
(t) other Investments in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments
for future Investments, not exceeding (i) the greater of (x) $330,000,00035,000,000
and
(y)
50.010.0
% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis, plus (ii) an
amount equal to any returns of capital or sale proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made); provided that any such amounts under this
clause (ii) shall not increase the Available Amount, it being
understood that any returns of capital or sale proceeds actually received in cash in respect of any such Investments in excess of the amount of such Investment valued at cost at the time such Investment was made shall increase the Available Amount
(to the extent such excess amount of returns or proceeds would otherwise increase the Available Amount pursuant to the definition
thereof);;
(u) Investments in JV Entities and Unrestricted Subsidiaries
in an aggregate amount, as valued at cost at the time each such Investment is made and including all related commitments for future Investments, not exceeding (i) the greater of (x) 165,000,000 and (y) 25.0% of Consolidated EBITDA of
the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis, plus (ii) an amount
equal to any returns of capital or sale proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such Investment valued at cost at the time such Investment was made); provided that any such amounts under this
clause (ii) shall not increase the Available Amount, it being
understood that any returns of capital or sale proceeds actually received in cash in respect of any such Investments in excess of the amount of such Investment valued at cost at the time such Investment was made shall increase the Available Amount
(to the extent such excess amount of returns or proceeds would otherwise increase the Available Amount pursuant to the definition thereof);
(u)
[reserved];
(v) Investments in connection with a Qualified Securitization
Transaction;
(w) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of
creditors in the case of a bankruptcy or insolvency of either the Borrowers or any Restricted Subsidiary;
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(x) Investments by an Unrestricted Subsidiary entered into prior to the day such
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”; provided that such Investments were not incurred in contemplation of such redesignation;
(y) other Investments; provided that, at the time of such Investment, (i) no Specified Event of Default has occurred and is continuing and (ii) the Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no
greater than 2.75:1.00; and
(z) Investments utilizing any unused amounts available under
SectionsSection
7.06(j) or 7.08(a)(iii)(A).; and
(aa)
Investments by or in any Captive Insurance Subsidiary in connection with the provision of insurance to the Parent Borrower or any 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 or 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.
Section 7.04. Fundamental
ChangesFundamental Changes. Merge, amalgamate, 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 or amalgamate with (i) the Parent Borrower (provided that the resulting entity shall succeed as a
matter of law to all of the Obligations of the Parent Borrower), or (ii) any one or more other Restricted Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted
Subsidiary, a Loan Party shall be a continuing or surviving Person, as applicable, or the resulting entity shall succeed as a matter of law to all of the Obligations of such Loan Party (including, without limitation, as a Borrower, as applicable));
(b)(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted
Subsidiary that is not a Loan Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may change its legal form, in each case, if the Borrowers determine in good faith that such
action is in the best interests of the Parent Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrowers may change their legal form if they determine in good faith that such action is in the best
interests of the Parent Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another
Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party 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 Section 7.02 and Section 7.03, respectively;
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(d) so long as no Event of Default exists or would result therefrom, any Borrower may merge
or amalgamate with any other Person (1) in a transaction in which such Borrower is the continuing or surviving entity of such transaction or (2) in a transaction in which such other Person is the surviving or continuing entity of such
transaction (such person, the “Successor Borrower”); provided that, in the case of this clause (2), (i) such Successor Borrower is organized under the laws of the United States; (ii) such Successor Borrower
shall assume the Obligations of such Borrower under the Loan Documents; (iii) each Guarantor shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents; (iv) each Guarantor
shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (v) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property 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 Borrower’s obligations under the Loan Documents[reserved]; (vi) such Borrower shall have delivered information
reasonably requested in writing by the Administrative Agent (or any Lender through the Administrative Agent) reasonably required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations,
including without limitation the USA PATRIOT Act of the type delivered on the Closing Date pursuant to Section 4.01(f) and (vii) such Borrower shall have delivered of an officer’s certificate certifying the compliance with the
foregoing;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any
other Person in order to effect an Investment permitted pursuant to Section 7.03; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall
have complied with the requirements of Section 6.10;
(f) so long as no Default exists or would result therefrom, a merger,
amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected.
Section 7.05.
DispositionsDispositions.
Make any Disposition, except:
(a) Dispositions of obsolete, 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 in the conduct of the business of the Parent Borrower and its Restricted Subsidiaries;
(b) Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any
applications for registration of any immaterial IP Rights to lapse or go abandoned in the ordinary course of business);
(c) Dispositions
of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase
price of such replacement property (which replacement property is actually promptly purchased);
(d) Dispositions of property to the
Parent Borrower or a Restricted Subsidiary for a bona fide business purpose or in the ordinary course of business or
consistent with past practice; provided that if the transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party, (ii) to the extent such
transaction constitutes an Investment, such transaction is permitted under Section 7.03, or (iii) such Disposition shall consist of the transfer of Equity Interests in or Indebtedness of any Foreign Subsidiary to any other Foreign
Subsidiary; provided that Dispositions made in reliance on this clause (d) may not be made in connection with any Liability Management Transaction;
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(e) Dispositions permitted by Section 7.03, Section 7.04 and
Section 7.06 and Liens permitted by Section 7.02 (other than, in each case, by reference to this Section 7.05);
(f) Dispositions in the ordinary course of business of Cash Equivalents;
(g) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the
business of the Parent Borrower and its Restricted Subsidiaries, taken as a whole;
(h) transfers of property subject to Casualty Events;
(i) Dispositions of Investments in JV Entities or non-Wholly Owned Restricted Subsidiaries; provided that no Dispositions may
be made pursuant to this Section 7.05(i) to the extent such
JV Entity or non-Wholly Owned Restricted Subsidiary was, prior to a previous Disposition of Equity Interests in such JV Entity or non-Wholly Owned Restricted Subsidiary made pursuant to another provision of this Section 7.05, a Wholly
Owned Restricted Subsidiary, and such Dispositions pursuant to such other provision of this Section 7.05 and this Section 7.05(i) were part of a single Disposition or series of related Disposition, other than to the
extent required by, or made pursuant to, customary buy/sell arrangements between the parties to such JV Entity or shareholders of such non-Wholly Owned Restricted Subsidiary set forth in the shareholders agreements, joint venture agreements,
organizational documents or similar binding agreements relating to such JV Entity or non-Wholly Owned Restricted Subsidiary.
(j)
Dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof or pursuant to factoring arrangements, in each case to the extent not constituting a receivables financing;
(k) the unwinding of any Swap Contract pursuant to its terms;
(l) Dispositions not otherwise permitted pursuant to this Section 7.05; provided that (i) such Disposition shall be for fair
market value as reasonably determined by the Parent Borrower in good faith and (ii) the Parent Borrower or the applicable Restricted Subsidiary shall receive not less than 75.0% of such consideration in the form of cash or Cash Equivalents
(provided, however, that for the purposes of this sub-clause the following shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of the Parent Borrower or any of its
Restricted Subsidiaries (other than Subordinated Debt) and the valid release of the Parent Borrower or such Restricted Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with
such Disposition, (B) securities, notes or other obligations received by the Parent Borrower or any of its Restricted Subsidiaries from the transferee that are converted by the Parent Borrower or any of its Restricted Subsidiaries into cash or
Cash Equivalents within 180 days following the closing of such Disposition, (C) Indebtedness (other than Subordinated Debt) of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Disposition, to the extent
that the Parent Borrower and each other Restricted Subsidiary are released from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) the aggregate Designated Non-Cash Consideration received by the Parent
Borrower and its Restricted Subsidiaries for all Dispositions under this clause (l) having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such Designated Non-Cash Consideration is
received) not to exceed the
144
greater of (x) $100,000,00035,000,000 and (y) 15.010.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period at any time outstanding (net of any Designated Non-Cash Consideration converted into cash and Cash Equivalents received in
respect of any such Designated Non-Cash Consideration and calculated on a Pro Forma Basis);
(m) the Parent Borrower and its
Restricted Subsidiaries may surrender or waive contractual rights and settle or waive contractual or litigation claims in the ordinary course of business;
(n) Dispositions of non-core or obsolete assets, or other dispositions required by applicable law, acquired in connection with Permitted
Acquisitions;
(o) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater
fair market value of usefulness to the business of the Parent Borrower and its Restricted Subsidiaries as a whole, as determined in good faith by the Parent Borrower;
(p) any sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary so long as the primary assets of such
Unrestricted Subsidiary are not cash or Cash Equivalents;
(q) [reserved]; and
(r) Dispositions for Cash Equivalents (other than in connection with the capitalization of any special purpose entity used to effect any such
Qualified Securitization Transaction) of Receivables and Receivables Related Assets in connection with any Qualified Securitization Transaction.; and
(s) Sale
Leasebacks having an aggregate fair market value (determined as of the closing of the applicable Disposition) not to exceed the greater of (x) $35,000,000 and (y) 10.0% of Consolidated EBITDA of the Parent Borrower for the most recently
ended Test Period calculated on a Pro Forma Basis at any time outstanding; provided that Sale Leasebacks made in
reliance on this clause (s) may not be made in connection with any Liability Management Transaction.
To the extent any Collateral is disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or
any Subsidiary Guarantor, such Collateral shall be sold free and clear of the Liens created by the Loan Documents and, if requested by the Administrative Agent, upon the certification by the Parent Borrower that such Disposition is permitted by this
Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
Section 7.06.
Restricted PaymentsRestricted Payments. Declare or make any Restricted Payment, except:
(a) each Restricted Subsidiary may make Restricted Payments to the Parent Borrower and to other Restricted Subsidiaries (and, in the case of a
Restricted Payment by a non-Wholly Owned Restricted Subsidiary, to the Parent Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests of the
relevant class of Equity Interests);
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(b) (i) the Parent Borrower may (or may make Restricted Payments to permit any direct or
indirect parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity
contributions or issuances of new Equity Interests; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the
Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parent Borrower may declare and make dividend payments or other distributions payable solely in Qualified Equity Interests (to the extent not utilized in
connection with any other transactions permitted pursuant to Section 7.01, Section 7.03, Section 7.06 or Section 7.08 (or to build the Available Amount or Excluded Contribution Amount));
(c)
(i) to pay
any franchise, excise and similar taxes and other fees and expenses required of the Parent Borrower and/or any of its Subsidiaries to maintain their corporate or other legal existence;
(ii) for any taxable period in which Parent Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or
similar income tax group for U.S. federal or applicable foreign, state or local income tax purposes of which a parent entity of any Borrower is the common parent (a “Tax Group”), to pay any U.S. federal, foreign, state and local
income taxes of such Tax Group for such taxable period that are attributable to the taxable income of the Borrowers and/or their 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 that the Borrowers and their Subsidiaries would have been required to pay as a stand-alone Tax
Group; and
(iii)
Restricted Payments not to exceed the greater of (x) $10,000,000 and (y) 2.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma Basis per calendar year; provided that, at the time of such Restricted Payment, no Event of Default has occurred and is continuing;
(d) to the extent constituting Restricted Payments, the Parent Borrower and its
Restricted Subsidiaries may enter into and consummate
(i) transactions expressly permitted by any provision of
Section 7.03, Section 7.04 or Section 7.07 (other than, in each case, by reference to this
Section 7.06) or (ii) the Amendment No. 2 Transactions;
(e) repurchases of Equity Interests in the ordinary course of business in the Parent
Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary 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;
(f) the Parent Borrower or any Restricted Subsidiary may, in good faith, pay for the repurchase, retirement or other acquisition or retirement
for value of Equity Interests of it held by any future, present or former employee, director, manager, officer or consultant (or any Affiliates, spouses, former spouses, other Immediate Family Members, successors, executors, administrators, heirs,
legatees or distributees of any of the foregoing) of the Parent Borrower or any of its Subsidiaries pursuant to any employee, management, director or manager equity plan, employee, management, director or manager stock option plan or any other
employee, management, director or manager benefit plan or any agreement (including any stock subscription or shareholder
146
agreement) with any employee, director, manager, officer or consultant of the Parent Borrower or any Subsidiary; provided that such payments do not to exceed $10,000,000 in any calendar
year; provided that any unused portion of the preceding basket for the two preceding calendar years may be carried forward to succeeding calendar
years;further that, at the time of such Restricted Payment, no Event of Default has occurred and is continuing;
(g) [reserved];
(h) the Parent
Borrower or any Restricted Subsidiary may pay any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Agreement (it being
understood that a distribution pursuant to this Section 7.06(h)
shall be deemed to have utilized capacity under such other provision of this Agreement);
(i) the Parent Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity Interests in connection with any
dividend, split or combination thereof or any Permitted Acquisition and (b) 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;
(j) the Parent Borrower or any Restricted Subsidiary may make
additional Restricted Payments in an amount not to exceed the greater of (x) $130,000,00035,000,000 and (y) 20.010.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis; provided that, at the time of such Restricted Payment, no Event of Default has occurred and is continuing;
(k) the Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments in an amount not to exceed, without duplication,
(i) the Available Amount and/or (ii) the Excluded Contribution Amount; provided that at the time of any such Restricted Payment in reliance on the Available Amount, (A) no Specified Event of Default shall have occurred and be
continuing or would result therefrom and (B) the Total Leverage Ratio of the Parent Borrower as of the
end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.00:1.00;
(l) the declaration and
payment by the Parent Borrower of Restricted Payments in an aggregate amount not to exceed for any calendar year, (i) 6.00% of the Market Capitalization of the Parent Borrower
plus (ii) 6.00% of the Net Cash Proceeds received by (or contributed to) the Parent Borrower from the issuance of Qualified Equity Interests of the Parent Borrower after the
Closing Date;; provided that, at the time of such Restricted Payment, no Event of Default has occurred and is continuing;
(m) the distribution, by dividend or otherwise, of Equity
Interests or Indebtedness owed to the Parent Borrower or a Restricted Subsidiary of an Unrestricted Subsidiary (or a Restricted Subsidiary that owns an Unrestricted Subsidiary;
provided that such Restricted Subsidiary has no independent operations or business and owns no assets other than Equity Interests of an Unrestricted Subsidiary), in each case, so
long as the primary assets of such Unrestricted Subsidiary are not cash or cash equivalents;
and[reserved]; and
(n) the Parent Borrower or any Restricted Subsidiary may make additional Restricted Payments; provided that, at the time of such
Restricted Payment, (i) no Specified Event of Default has occurred and is continuing and (ii) the
Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a
Pro Forma Basis, would be no greater than 2.50:1.00.
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Section 7.07. Transactions with Affiliates. Enter into any transaction of any
kind with any Affiliate of the Parent Borrower with a fair market value in excess of $12,500,000, whether or not in the ordinary course of business, other than:
(a) transactions between or among the Parent Borrower or any Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a
result of such transaction;
(b) transactions on terms not less favorable to the Parent Borrower or such Restricted Subsidiary as would be
obtainable by the Parent 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 Amendment No. 2 Transactions and the
payment of fees and expenses related to the Transactions and the Amendment No. 2 Transactions;
(d) the issuance of Equity Interests to any officer, director, manager, employee or
consultant of the Parent Borrower or any of its Subsidiaries or any direct or indirect parent of the Parent Borrower in connection with the Transaction;
(e) transactions relating to a Qualified Securitization Transaction;
(f) equity issuances, repurchases, redemptions, retirements or other acquisitions or retirements of Equity Interests by the Parent Borrower or
any Restricted Subsidiary permitted under Section 7.06;
(g) loans and other transactions by and among the Parent Borrower
and/or one or more Subsidiaries to the extent permitted under this Article VII;
(h) employment and severance arrangements between
the Parent Borrower or any of its 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;
(i) [reserved];
(j) 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 Parent Borrower and its Restricted Subsidiaries in the ordinary course of
business;
(k) transactions pursuant to agreements in existence on the ClosingAmendment No. 2
Effective Date and set forth on Schedule 7.07 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect;
(l) dividends and other distributions permitted under Section 7.06;
(m) [reserved]
(n)
transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the redesignation of any such Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the definition of “Unrestricted Subsidiary”; provided that
such transactions were not entered into in contemplation of such redesignation;
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(o) Dispositions for Cash Equivalents (other than in connection with the capitalization of
any special purpose entity used to effect any such Qualified Securitization Transaction) of Receivables and Receivables Related Assets in connection with any Qualified Securitization Transaction; and
(p) [reserved].
Section 7.08. Prepayments, Etc., of Indebtedness. .
(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner any
SubordinatedRestricted
Debt (it being understood that payments of regularly scheduled interest, regularly scheduled principal, AHYDO Payments and mandatory prepayments under any such SubordinatedRestricted
Debt Documents shall not be prohibited by this clause), except for (i) the refinancing thereof with, or the exchange thereof for, of any Indebtedness (to the extent such Indebtedness constitutes a
Permitted Refinancing), (ii) the conversion thereof to Equity Interests (other than Disqualified Equity Interests) of the Parent Borrower or any of its direct or indirect parentparents, (iii) prepayments, redemptions, purchases, defeasances and other payments thereof prior to their scheduled maturity in an aggregate amount not to exceed (A) the greater of (x) $130,000,000 and (y) 20.0% of Consolidated EBITDA of the Parent Borrower for the most recently ended Test Period calculated on a Pro Forma
Basis[reserved], plus (B) the
Available Amount, (provided that at the time of any such prepayment, redemption, purchase, defeasance and other payment in reliance on clause (b) of the definition of “Available Amount”, (A) no Specified Event of
Default shall have occurred and be continuing or would result therefrom and (B) the Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no greater than 3.00:1.00 (excluding
any such prepayment, redemption, purchase, defeasance and other payment made in reliance on clause (a) of the definition of “Available Amount”), plus (C) without
duplication, the Excluded Contribution Amount (provided that at the time of any such prepayment, redemption, purchase, defeasance and other payment in reliance on the definition of “Excluded Contribution Amount)”, no Specified Event of Default shall have occurred and be continuing or would result
therefrom), (iv) payments and prepayments utilizing
amounts otherwise available pursuant to Section 7.06(j)
and, (v) other prepayments, redemptions,
purchases, defeasances and other payments thereof prior to their scheduled maturity (provided that, at the time of such prepayments, redemptions, purchases, defeasances or other payments, (x) no Specified Event of Default has occurred and is continuing and (y) the Total Leverage Ratio of the Parent Borrower as of the end of the most recently ended Test Period, on a Pro Forma Basis, would be no
greater than
2.50:1.00).,
(vi) any prepayment, redemption, purchase, defeasance and other payment of Senior Notes made (A) for cash (other than with the proceeds of an Equity Offering) at a purchase price not to exceed, (x) with respect to the 2021 Indenture
Notes, 75.0% of the principal amount thereof or (y) with respect to the 2022 Indenture Notes, 77.0% of the principal amount thereof, in each case, plus accrued and unpaid interest, (B) in exchange for Indebtedness incurred pursuant to
Section 7.01(h)(E) at a purchase price not to exceed, (x) with respect to the 2021 Indenture Notes, 83.5% of the principal amount thereof or (y) with respect to the 2022 Indenture Notes, 84.5% of the principal amount thereof, in each
case, plus accrued and unpaid interest; provided that, for the avoidance of doubt, any such accrued and unpaid interest
in the case of the foregoing clause (B) may be paid in cash, or (C) with the proceeds of an Equity Offering, for cash at a purchase price not to exceed the principal amount thereof, plus accrued and unpaid interest, (vii) other
prepayments, repurchases, exchanges, redemptions, defeasances, discharges or other acquisitions or retirements of Restricted Debt in
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anticipation of satisfying a sinking fund obligation, principal
installment, or final maturity due within one year of the date of prepayment, repurchase, exchange, redemption, defeasance, discharge or other acquisition or retirement, (viii) any prepayment, purchase, repurchase, exchange, redemption,
defeasance, discharge or other acquisition or retirement of Restricted Debt to the extent required by the agreement governing such Restricted Debt, following the occurrence of a Disposition (or other similar event described therein as an
“asset disposition” or “asset sale”), but only if the Parent Borrower shall have first complied with Section 2.05(b)(ii), and prepaid all Loans required thereby, prior to purchasing, repurchasing, redeeming, defeasing or
otherwise acquiring or retiring such Restricted Debt and (ix) in connection with the Amendment No. 2 Transactions.
(b) Amend, modify or change in any manner materially adverse to the interests of the Lenders any term or condition of any Subordinated Debt
Documents without the consent of the Required Lenders (not to be unreasonably withheld or delayed).
Section 7.09. [Reserved]. .
Section 7.10.
Subsidiary DistributionsSubsidiary Distributions. Enter into any agreement, instrument, deed or lease
which prohibits or limits the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests; provided that the foregoing shall not apply to:
(a) restrictions and conditions imposed by (A) law or (B) any Loan Document;
(b) restrictions and conditions existing on the
ClosingAmendment
No. 2 Effective Date (including the Indentures or the Existing OMI CreditFirst Lien Revolving Credit Facility Agreement) or to any extension,
renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition;
(c) customary restrictions and conditions arising in connection with any Disposition permitted by Section 7.05;
(d) customary provisions in leases, licenses and other contracts restricting the assignment thereof;
(e) restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent such restriction applies
only to the property securing such Indebtedness;
(f) any restrictions or conditions set forth in any agreement in effect at any time any
Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted
Subsidiary and the restriction or condition set forth in such agreement does not apply to the Parent Borrower or any other Restricted Subsidiary;
(g) any restrictions or conditions in any Indebtedness permitted pursuant to Section 7.01 or by the definition of ““Refinancing Term
Loans””
hereof to the extent such restrictions or conditions are no more restrictive than the restrictions and conditions in the Loan Documents or, in the case of Subordinated Debt, are market terms at
the time of issuance or, in the case of Indebtedness of any Non-Loan Party, are imposed solely on such Non-Loan Party and its Subsidiaries; provided that any such restrictions or conditions permit compliance with the Collateral and Guarantee
Requirement and Section 6.10;
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(h) any restrictions on cash or other deposits imposed by agreements entered into in the
ordinary course of business;
(i) customary provisions in shareholders agreements, joint venture agreements, organizational documents or
similar binding agreements relating to any JV Entity or non-Wholly Owned Restricted Subsidiary and other similar agreements applicable to JV Entities and non-Wholly Owned Restricted Subsidiaries permitted under Section 7.03 and
applicable solely to such JV Entity or non-Wholly Owned Restricted Subsidiary and the Equity Interests issued thereby;
(j) customary
restrictions in leases, subleases, licenses or asset sale agreements and other similar contracts otherwise permitted hereby so long as such restrictions relate only to the assets subject thereto;
(k) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
(l) customary net worth provisions contained in real property leases entered into by Subsidiaries of the Parent Borrower, so long as the
Parent Borrower has determined in good faith that such net worth provisions could not reasonably be expected to impair the ability of the Parent Borrower and its Subsidiaries to meet their ongoing obligation; and
(m) restrictions imposed by any agreement governing Indebtedness entered into on or after the Closing Date and permitted under
Section 7.01.
Section
7.11. [Reserved]Financial Covenants. Solely with respect to
the Term A-1 Term Facility, except with the written consent of the Required Term A-1 Lenders:
Section
7.12. Liability Management Transactions. Consummate a Liability Management Transaction.
(a) Total Leverage Ratio. As of the last day of (i) each fiscal quarter of the Parent Borrower beginning with the fiscal quarter ending
June 30, 2022 until the fiscal quarter ending March 31, 2024, the Parent Borrower shall cause the Total Leverage Ratio to be less than or equal to 5.00:1.00 and (ii) each fiscal quarter of the Parent Borrower ending after
March 31, 2024, the Parent Borrower shall cause the Total Leverage Ratio to be less than or equal to 4.50:1.00. Notwithstanding the foregoing, commencing with the fiscal quarter of the Parent Borrower ending June 30, 2024, at the election
of the Parent Borrower (the notice of which election shall be given within thirty (30) days after consummating the relevant Qualified Acquisition), the applicable level set forth in clause (ii) above shall be increased to 5.00:1.00 in
connection with a Qualified Acquisition for four consecutive Test Periods (and no other Test Periods), starting with the Test Period in which such Qualified Acquisition is consummated (a “Qualified Acquisition Election”). Upon the return to a Total Leverage Ratio of 4.50:1.00 after any Qualified
Acquisition Election, such level must be maintained for at least two Test Periods before the Parent Borrower may elect to increase such level for a subsequent time pursuant to any Qualified Acquisition Election.
(b) Consolidated Interest Coverage Ratio. As of the end of each fiscal quarter of the Parent
Borrower, the Parent Borrower and the Borrowers shall cause the Consolidated Interest Coverage Ratio to be greater than or equal to 2.00:1.00.
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. Any of the following events referred to in any of clauses (a) through
(l) inclusive of this Section 8.01 shall constitute 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 any other amount payable hereunder
or with respect to any other Loan Document; or
(b) Specific Covenants. The Parent Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03(a) or Section 6.04 (solely with respect to the Parent Borrower), Section 6.12(b) or Article VII; provided (i) that an Event of Default
arising from a failure to comply with Section 6.03(a) shall be deemed to be no longer continuing automatically upon and simultaneously with the underlying Default ceasing to be continuing so long as the Parent Borrower has provided
notice to the Administrative Agent promptly after a Responsible Officer obtains knowledge of such underlying Default, and (ii) that a Default or an Event of
Default in respect of Section 7.11
(a “Financial Covenant
Event of Default”) shall not occur until the start of the tenth (10th) Business Day subsequent to the date the financial
statements for the applicable fiscal quarter or fiscal year are required to be delivered pursuant to Section 6.01(a) or 6.01(b), and then shall occur only if the Cure Amount has not been
received after the end of such fiscal quarter or on or prior to such date; provided further that a Financial Covenant Event of Default shall not constitute an Event of Default with respect to any Term Loans (other than Term A Loans) unless and until the Required
Term A-1 Lenders have declared all amounts outstanding under the Term A-1 Facility to be immediately due and
payable[reserved], in each case in accordance with
this Agreement and such declaration has not been rescinded on or before such date; or
(c) Other Defaults. Any Loan Party
fails to perform or observe any other covenant or agreement (not specified in Section 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 the earlier of (x) knowledge thereof by a Responsible Officer or (y) receipt by the Borrowers of written notice thereof by the Administrative Agent or the Required Lenders; or
(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on
behalf of any Loan Party herein, in any other Loan Document, or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made and such incorrect or
misleading representation, warranty, certification or statement of fact, if capable of being cured, remains so incorrect or misleading for thirty (30) days after the earlier of (x) knowledge thereof by a Responsible Officer or
(y) receipt by the Borrowers of written notice thereof by the Administrative Agent or the Required Lenders; or
(e)
Cross-Default. Any Loan Party 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 Indebtedness hereunder) having an aggregate principal amount exceeding the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such
Indebtedness, or any other event occurs (other than (i) with respect to Indebtedness consisting of Swap Contracts, termination events or equivalent events pursuant to the terms of such Swap
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Contracts and (ii) any event requiring prepayment pursuant to customary asset sale events, insurance and condemnation proceeds events, change of control offers events and excess cash flow
and indebtedness sweeps), 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, all 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 all such Indebtedness to be made, prior to its
stated maturity; provided that this clause
(e))(B) shall not apply to secured Indebtedness that becomes due (or requires an offer to purchase) 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; provided, further, that (x) such failure or breach is unremedied and is not waived by the required holders of such Indebtedness and
(y) for the avoidance of doubt, any event or condition set forth under this paragraph (e) shall not, until the expiration of any applicable grace period or the delivery of notice by the applicable holder or holders of such
Indebtedness, constitute a Default or an Event of Default for purposes of this Agreement; provided, further, that for any Term Loan other than Term A
Loans, with respect to any of the events described in clause (B) above in respect of the
Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement and arising from a breach of Section 7.11 thereunder (or any similar financial maintenance covenant added to the Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement from time to time), such event shall only constitute an Event of Default under this Agreement if (x) Indebtedness under the Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement has been accelerated in accordance with its terms and (y) the Required Revolving Credit Lenders have terminated the Revolving Credit Commitments; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of the Restricted Subsidiaries 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, interim receiver, receiver and manager, 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, interim receiver, receiver and manager, 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 Party 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) and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of sixty (60) consecutive days; or
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(i) Invalidity of Collateral Documents. Any material provision of any Collateral
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 Section 7.04 or Section 7.05) or
solely as a result of acts or omissions by the Administrative Agent or any Lender or the satisfaction in full of all the Obligations, ceases to be in full force and effect or ceases to create a valid and perfected lien, with the priority set forth
in the Collateral and Guarantee Requirement, on a material portion of the Collateral covered thereby; or any Loan Party contests in writing the validity or enforceability of any material provision of any Collateral Document; or any Loan Party denies
in writing that it has any or further liability or obligation under any Collateral Document (other than as a result of repayment in full of the Obligations and termination of the Term Commitments), or purports in writing to revoke or rescind any
Collateral Document; or
(j) Invalidity of Guarantees. Any Guarantee, after its execution and delivery, provided by any
Guarantor that is a Material Subsidiary, or any material provision thereof, ceases to be in full force and effect (other than pursuant to the terms hereof or thereof) or any Loan Party denies or disaffirms in writing any such Guarantor’s
material obligations under its Guarantee (other than as a result of repayment in full of the Obligations and terminations of the Commitments); or
(k) Change of Control. There occurs any Change of Control; or
(l) ERISA. (i) An ERISA Event or similar event with respect to a Foreign Plan occurs which, individually or together with other
similar events which have occurred, has resulted or could reasonably be expected to result in a Material Adverse Effect, or (ii) a Loan Party 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 the remaining balance of which could reasonably be expected to result in a Material Adverse Effect.
Section 8.02. Remedies Upon Event of Default. If any Event of Default (other than a Term A Event of Default) occurs and is continuing, the Administrative Agent, at the request of the
Required Lenders (and if a Term A Event of Default occurs and is continuing, the Administrative Agent may, and shall, at the request of the Required Term A-1
Lenders, and in such case only with respect to the Term A-1 Commitments and Term A-1 Term Loans), shall take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated;
(b) 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 Borrowers;
(c) [reserved];
(d) 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 Event of Default under Section 8.01(f) or (g) with respect to any Borrower, the obligation of each Lender to make Loans 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 without further act of the Administrative Agent or any Lender.
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Section 8.03. Exclusion of Immaterial Subsidiaries. Solely for the purpose of
determining whether a Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Subsidiary that is
an Immaterial Subsidiary or at such time could, upon designation by the Parent Borrower, become an Immaterial Subsidiary affected by any event or circumstances referred to in any such clause unless the Consolidated EBITDA of such Subsidiary together
with the Consolidated EBITDA of all other Subsidiaries affected by such event or circumstance referred to in such clause, shall exceed 7.5% of the Consolidated EBITDA of the Parent Borrower and its Restricted Subsidiaries.
Section 8.04. Application of Funds. If the circumstances described in Section 2.12(g) have occurred, or after the
exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), including in any bankruptcy or insolvency proceeding,
any amounts received on account of the Obligations shall be applied by the Administrative Agent, subject to the Closing DatePari Passu First Lien Intercreditor Agreement or any other Acceptable
Intercreditor Agreement then in effect, in the following order:
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 each 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
(including, but not limited to, post-petition interest), ratably among the Lenders 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, Swap Termination Value under Secured
Hedge Agreements and Cash Management Obligations, 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 Loan Parties 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 Borrowers or as otherwise required by Law.
Section 8.05. Right to Cure.
(a) Notwithstanding anything to the contrary contained in Section 8.01(b), in the event that the Parent Borrower fails to comply with the requirement
of the Financial Covenants as of the last day of the Test Period, the Parent Borrower shall have the right, during the period beginning at the start of any fiscal quarter in which the Parent Borrower determines that a breach of the Financial
Covenants may occur, until the expiration of the tenth Business Day (the “Cure Period”) after the
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date on which financial statements with respect to the Test Period in which the Financial Covenants are being
measured are required to be delivered pursuant to Section 6.01, to issue common Equity
Interests (or other Qualified Equity Interests or Subordinated Debt on terms reasonably acceptable to the Administrative Agent) for net cash proceeds (the “Cure
Right”), and upon the receipt by the Parent Borrower of net cash proceeds pursuant to the exercise of the Cure Right (the “Cure Amount”), the Financial Covenants shall be recalculated, giving effect to a pro forma increase to Consolidated
EBITDA for such Test Period in an amount equal to such Cure Amount; provided that such pro forma adjustment to
Consolidated EBITDA shall be given solely for the purpose of determining the existence of a Default or an Event of Default under the Financial Covenants with respect to any Test Period that includes the fiscal quarter for which such Cure Right was
exercised and not for any other purpose under any Loan Document (including for purposes of determining pricing, mandatory prepayments and the availability or amount permitted pursuant to any covenant under Article VII).
(b) If, after the exercise of the Cure
Right and the recalculations pursuant to clause (a) above, the Parent Borrower shall
then be in compliance with the requirements of the Financial Covenants during such Test Period (including for purposes of Section 4.02), the Parent Borrower shall be deemed to have satisfied the requirements of the Financial Covenants as of the relevant date of determination with the same effect as though there
had been no failure to comply therewith at such date, and the applicable Default or Event of Default under Section 8.01 that had occurred shall be deemed cured; provided that (i) the Cure Right may be exercised on no more than five (5) occasions, (ii) in each four (4) consecutive fiscal quarter period, there shall be at least two (2) fiscal
quarters in respect of which no Cure Right is exercised, (iii) with respect to any exercise of the Cure Right, the Cure Amount shall not be given effect in an amount greater than the amount required to cause the Parent Borrower to be in
compliance with the Financial Covenants (such amount, the “Necessary Cure Amount”) (provided that if the Cure Right is exercised prior to the date financial statements are required to be delivered for such
fiscal quarter then the Cure Amount shall be equal to the amount reasonably determined by the Parent Borrower in good faith that is required for purposes of complying with the Financial Covenants for such fiscal quarter (such amount, the
“Expected Cure Amount”) and (iv) the net cash proceeds from the Cure Right may not reduce the
amount of Consolidated Total Debt for purposes of calculating compliance with the Financial Covenants for the fiscal quarter with respect to such Cure Right was made.
(c) Notwithstanding anything herein to the contrary,
(A) to the extent that the Expected Cure Amount is (i) greater than the Necessary Cure Amount, then such difference may be used for the purposes of determining any baskets (other than any previously contributed Cure Amounts), with respect
to the covenants contained in the Loan Documents and (ii) less than the Necessary Cure Amount, then not later than
the expiration of the applicable Cure Period, the Borrowers must receive a direct or indirect equity investment in cash in the form of common Equity Interests (or other Qualified Equity Interests or Subordinated Debt on terms reasonably acceptable
to the Administrative Agent), which cash proceeds received by Borrowers shall be equal to the shortfall between such Expected Cure Amount and such Necessary Cure Amount and (B) prior to the expiration of the Cure Period (x) the Lenders
shall not be permitted to exercise any rights then available as a result of an Event of Default under Section 8.01(b) on the basis of a breach of the Financial Covenants so as to enable the Borrowers to consummate their Cure Rights as permitted under this Section 8.05 and (y) the Lenders shall not be required to make any
Credit Extension unless and until the Borrowers have received the Cure Amount required to cause the Parent to be in compliance with the Financial Covenants.
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ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
Section 9.01. Appointment and Authorization of
Agents.
.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative 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. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any
Collateral Document governed by the laws of such jurisdiction on such Lender’s behalf. Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, the Administrative Agent shall have no duties or
responsibilities, except those expressly set forth herein, nor shall the Administrative 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. 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)
[Reserved].
(c) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each
of the Lenders (in its capacities as a Lender, a potential Hedge Bank or Cash Management Bank) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien
created by the Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with
such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “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 Administrative
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. Without limiting the generality of the foregoing, the Lenders hereby expressly authorize the Administrative 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 the Loan Documents and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind
the Lenders.
Section 9.02. Delegation of Duties. The Administrative 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 Affiliates,
agents,
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employees or attorneys-in-fact, such sub-agents as shall be deemed necessary by the Administrative Agent, and shall be entitled to advice of counsel, both internal and external, and other
consultants or experts concerning all matters pertaining to such duties. 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.
Section 9.03. Liability of Agents. No Agent-Related Person shall (a) be liable to any
Lender 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, including their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Administrative Agent (except for its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in
connection with its duties expressly set forth herein), (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 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, or the validity, perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, the
value or sufficiency of any Collateral or the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent, or for any failure
of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder or (c) 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; further, without limiting the generality of the foregoing clause (c), no Agent-Related Person shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender or
Participant or prospective Lender or Participant is a Disqualified Lender or (y) 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. No Agent-Related Person shall be under any obligation to any Lender or participant 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. No 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 such Agent 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 such Agent shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Law. No Agent
shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), or
in the absence of its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein.
Section 9.04. Reliance by Agents. .
(a) Each Agent shall be entitled to rely, and shall be fully protected in relying,
upon any writing, communication, signature, resolution, representation, notice, request, consent, certificate, instrument, 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
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of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by such Agent and shall not incur any liability for relying thereon. 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.
(b) For purposes of determining compliance with the conditions specified
in 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.
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 Borrowers referring to this Agreement, describing such Default and stating that such notice is a “notice of default.” The Administrative Agent will promptly notify the Lenders of its receipt of any such notice. Subject to the
other provisions of this Article IX, the Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required
Lenders, or with respect to any Term A Event of Default, the Administrative Agent shall take such action as directed by the Required Term A-1 Lenders, in each case,
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 (or in the case of Term A Event of Default, advisable or in the best interest of the Term A-1 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 (i) the Loan Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be
applicable to such Lender in each case in the ordinary course of business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender agrees not to assert a claim in contravention of the
foregoing), (iii) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and (iv) 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 an investigation into the business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or
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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 Borrowers and the other Loan Parties
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 Parent Borrower, the Borrowers and the other 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 respective
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), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it in its capacity as an Agent-Related Person; 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 and 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. 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 the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent 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 is not reimbursed for such expenses by or on
behalf of the Borrowers; provided that such reimbursement by the Lenders shall not affect the Borrowers’ continuing reimbursement obligations with respect thereto, if any. The undertaking in this Section 9.07 shall survive
termination of the Term Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.
Section 9.08. Agents in their Individual Capacities. JPMorgan Chase Bank, N.A. and its Affiliates may make loans to, accept
deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties and their respective Affiliates as though JPMorgan Chase Bank, N.A. were
not the Administrative Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, JPMorgan Chase Bank, N.A. or its Affiliates may receive information regarding any Loan Party or any
Affiliate of a Loan Party (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information
to them. With respect to its Loans, JPMorgan Chase Bank, N.A. 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, and the terms
“Lender” and “Lenders” include JPMorgan Chase Bank, N.A. in its individual capacity.
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Section 9.09.
Successor AgentsSuccessor
Agents. The Administrative Agent may resign as the Administrative Agent and Collateral Agent upon thirty (30) days’ notice to the Lenders and the Borrowers. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which appointment of a successor agent shall require the consent of the Borrowers at all times other than during the existence of an Event of Default under
Section 8.01(f) or (g) (which consent of the Borrowers shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the Borrowers, a successor agent from among the Lenders. 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 and Collateral Agent and the term “Administrative Agent” shall mean such successor administrative agent and/or supplemental administrative agent, as the
case may be (and the term “Collateral Agent” shall mean such successor collateral agent, as described in this Section 9.09 and/or supplemental agent, as described in Section 9.02), and the retiring Administrative
Agent’s appointment, powers and duties as the Administrative Agent and Collateral Agent shall be terminated. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent and Collateral Agent, the provisions
of this Article IX and Section 10.04 and Section 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 and Collateral Agent under this Agreement. If
no successor agent has accepted appointment as the Administrative Agent and Collateral Agent by the date which is thirty (30) days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent and Collateral Agent hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above (except that in the case of any collateral security held by the Collateral Agent on behalf of the Lenders under any of the Loan Documents, the retiring Collateral Agent shall continue to hold such collateral security
until such time as a successor Collateral Agent is appointed). Upon the acceptance of any appointment as the Administrative Agent and Collateral Agent hereunder by a successor and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required Lenders may reasonably 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 the Collateral and Guarantee Requirement is satisfied, the Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring
Administrative Agent and Collateral Agent, and the retiring Administrative Agent and Collateral Agent shall, to the extent not previously discharged, be discharged from its duties and obligations under the Loan Documents.
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 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 Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 2.09 and
Section 10.04) 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
(c) any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to
the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due to the Administrative Agent under
Section 2.09 and Section 10.04.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the
direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and
in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129
of the Bankruptcy Code, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of)
the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be,
credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional
to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to
consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the
acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or
indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (g) of
Section 10.01), (iii) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received
a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any
further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned
to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any
acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
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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. The Lenders irrevocably agree:
The Lenders irrevocably agree:
(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 Term Commitments and payment in full of all Obligations (other than contingent indemnification obligations and other contingent obligations not yet accrued and payable), (ii) at the time
the property subject to such Lien is transferred or to be transferred as part of or in connection with any transfer permitted hereunder or under any other Loan Document to any Person other than any other Loan Party, (iii) subject to
Section 10.01, if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders, (iv) if the property subject to such Lien is owned by a Loan Party, upon release of such Loan Party from its
obligations under its Guaranty pursuant to clause (c) or (d) below or (v) if the property
subject to such Lien becomes Excluded Property;
(b) the Administrative Agent is authorized to 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 clauses (i) and (dd) of the definition of “Permitted
Liens”; and
(c) if any Subsidiary Guarantor or Borrower (other than the Parent Borrower) ceases to be a Restricted Subsidiary, or
becomes an Excluded Subsidiary, in each case as a result of a transaction or designation permitted hereunder (as certified in writing delivered to the Administrative Agent by a Responsible Officer of the Parent Borrower), (x) such Subsidiary
shall be automatically released from its obligations under the Guaranty and all other Loan Documents and (y) any Liens granted by such Subsidiary or Liens on the Equity Interests of such Subsidiary (to the extent such Equity Interests have
become Excluded Property or are being transferred to a Person that is not a Loan Party) shall be automatically released; provided that no such automatic release shall occur if (w) such transaction or designation is in connection with any Liability Management Transaction, (x) such Subsidiary Guarantor or Borrower (other than the Parent Borrower) continues to be a guarantor or co-borrower, as applicable, in respect of any Incremental Equivalent Debt or any other
Indebtedness of a Loan Party, in each case, with an
aggregate outstanding principal amount in excess of the Threshold Amount or, (y) such Subsidiary Guarantor or Borrower (other than the Parent
Borrower) becomes an Excluded Subsidiary solely under clause (h) of the definition of “Excluded Subsidiary” unless in connection with a bona fide Disposition of the Equity Interests of such Subsidiary Guarantor or Borrower
(other than the Parent Borrower) to a Person that is not a Loan Party or an Affiliate of a Loan Party that is permitted hereunder., or (z)
such Subsidiary Guarantor or Borrower (other than the Parent Borrower) becomes an Excluded Subsidiary solely
under clause (k) of the definition of “Excluded Subsidiary” unless in connection with a bona fide Disposition of the Equity Interests of such Subsidiary Guarantor or Borrower (other than the Parent Borrower) to a Foreign Subsidiary
that is permitted hereunder.
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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party (other than the Parent Borrower) from its obligations under the Guaranty and all other
Loan Documents pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent will promptly (and each Lender irrevocably authorizes the Administrative Agent to), at the
Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party 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 Loan Party (other than the Parent Borrower) from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this
Section 9.11. Prior to releasing or subordinating its interest in particular types or items of property, or to release any Loan Party (other than the Parent Borrower) from its obligations under the Guaranty and all other Loan Documents
pursuant to this Section 9.11, the Administrative Agent and/or the Collateral Agent shall be entitled to receive a certificate of a Responsible Officer of the Parent Borrower stating that such actions are permitted under this Agreement.
Neither the Administrative Agent nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such certificate of a Responsible Officer of the Parent Borrower.
The Collateral Agent shall have no obligation whatsoever to the Lenders or to any other Person to assure that the Collateral exists or is
owned by any Loan Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this
Section 9.11 or in any of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in
its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Lenders, except for its gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
Section 9.12. Other
Agents; Arrangers and Managers . None of the Lenders, the Agents, the Lead Arrangers or other Persons identified on the facing page or signature pages of this Agreement as a “joint lead arranger and bookrunner” or
“co-arranger” 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. Appointment of Supplemental Administrative 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
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in particular in case of the enforcement of any of the Loan Documents, or in case the Administrative 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 is hereby authorized to appoint an
additional individual or institution selected by the Administrative 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 Administrative Agent” and, collectively, as “Supplemental Administrative Agents”).
(b) In the event that the Administrative Agent appoints a Supplemental Administrative 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 Administrative Agent with respect to such Collateral shall be exercisable by and vest
in such Supplemental Administrative Agent to the extent, and only to the extent, necessary to enable such Supplemental Administrative 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 Administrative Agent shall run to and be enforceable by either the
Administrative Agent or such Supplemental Administrative Agent, and (ii) the provisions of this Article IX and of Section 10.04 and Section 10.05 that refer to the Administrative Agent shall inure to the benefit
of such Supplemental Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent and/or such Supplemental Administrative Agent, as the context may require.
(c) Should any instrument in writing from any Loan Party be required by any Supplemental Administrative Agent so appointed by the
Administrative Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the Borrowers shall, or shall cause such Loan Party to, execute, acknowledge and deliver any and all such
instruments promptly upon request by the Administrative Agent. In case any Supplemental Administrative 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 Administrative Agent, to the extent permitted by Law, shall vest in and be exercised by the Administrative Agent until the appointment of a new Supplemental Administrative Agent.
Section 9.14.
Withholding Tax Withholding Tax.. To the extent required by any applicable Law, the Administrative Agent
may deduct or withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other Governmental Authority 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 because the appropriate form was not delivered or was 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 indemnify and hold harmless the Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as Tax or otherwise, and shall make payable in respect thereof within ten (10) days after demand therefore including any penalties, additions to Tax or interest and together with all expenses (including legal expenses,
allocated internal costs and out-of-pocket expenses) incurred, 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
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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 9.14. The agreements in this
Section 9.14 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the repayment, satisfaction or discharge of
all other obligations. For the avoidance of doubt, (1) the term
““
applicable
Law””
shall, for purposes of this Section 9.14, include FATCA and (2) this Section 9.14 shall not limit or expand the obligations of the Borrowers or any Guarantor under
Section 3.01 or any other provision of this Agreement.
Section 9.15. Recovery of Erroneous Payments.
.
(a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in
its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a
“Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day
thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment
(or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment
with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the
Administrative Agent to any Lender under this Section 9.15(a) shall be conclusive, absent manifest error.
(b) Each
Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the
Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has
been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such
occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand
was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater
of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) Each Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not
recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay,
prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower or any other Loan Party.
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(d) Each party’s obligations under this Section 9.14 shall survive the
resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan
Document.
(e) Nothing in this Section 9.15 shall be interpreted to increase (or accelerate the due date for), or have the
effect of increasing (or accelerating the due date for), the Obligations of the Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Payment not been made by the Administrative
Agent; provided, further, that for the avoidance of doubt, Sections 9.15(c) and (d) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that
is, comprised of funds received by the Administrative Agent from the Borrowers for the purpose of making such Erroneous Payment.
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 the Borrowers or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrowers or the applicable Loan Party, as the case may be, acknowledged by the Administrative
Agent (such acknowledgment not to be unreasonably withheld or delayed) and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or
consent shall:
(a) extend or increase the Commitment of any Lender without the written consent of each Lender directly and adversely
affected thereby (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any 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 the amount of, any payment of principal or
interest under Section 2.07 or Section 2.08, fees or other amounts without the written consent of each Lender directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any
mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest;
(c) reduce the principal of, or the rate of interest specified herein on, any Loan or (subject to clause (iii) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby, it being understood that any change to the
definition of First Lien Leverage Ratio, Secured Leverage Ratio or Total Leverage Ratio or in the component definitions thereof shall not constitute a reduction in the rate of interest or fees; 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 Borrowers to pay interest at the Default Rate;
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(d) change any provision of this Section 10.01 or change any provision of
Section 2.13 or Section 8.04 that would alter the pro rata sharing of payments without the written consent of each Lender directly and adversely affected thereby;
(e) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of
each Lender; provided that any transaction permitted under Section 7.04 or Section 7.05 shall not be subject to this clause (e) to the extent such transaction does not result in the release of all or
substantially all of the Collateral;
(f) release all or substantially all of the value of the Guarantees in any transaction or series of
related transactions, without the written consent of each Lender; provided that any transaction permitted under Section 7.04 or Section 7.05 shall not be subject to this clause (f) to the extent such
transaction does not result in the release of all or substantially all of the Guarantees;
(g) other than in connection with a
debtor-in-possession financing or use of cash collateral in any proceeding under any Debtor Relief Law permitted under any Acceptable Intercreditor Agreement, or except as otherwise expressly permitted by this Agreement or the other Loan Documents,
(x) subordinate the Liens on all or substantially all of the Collateral securing the Obligations or the payment of the Obligations to other Indebtedness or (y) subordinate the Liens securing the Obligations, or the payment of the
Obligations, in respect of one Class of Term Loans to the Liens securing the Obligations, or the payment of the Obligations, in respect of any other Class of Term Loans (unless, in the case of clause (x), the opportunity to participate in the
priming debt giving rise to such subordination is offered to all of the Lenders of each Class on a pro rata basis), without the written consent of each Lender directly and adversely affected thereby;
(h) change the definition of (x) “Required Lenders” without the written consent of each Lender and (y) “Required Term A-1 Term
Lenders” without the written consent of each Term A-1 Term Lender; and
(i) waive or otherwise modify any Term A Loan Specific
Provision or any other provision in this Agreement or any other Loan Document that expressly provides for the consent of the Required Term Loan A Lenders without the written consent of the Required Term Loan A Lenders; provided, however, that the amendments, modifications, waivers and consents described in this clause (i) shall not require the consent of any Lenders other than the Required Term Loan A
Lenders;
(i) [reserved];
and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the
Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document; (ii)Section 10.07(h) 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 (iii) (A) any amendment or waiver that by its terms affects the rights or
duties of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) will require only the requisite percentage in interest of the affected Class of Lenders that would be required
to consent thereto if such Class of Lenders were the only Class of Lenders and (B) in determining whether the requisite percentage of Lenders have consented to any amendment, modification, waiver or other action, any Defaulting Lenders or
Affiliated Lenders (other than Affiliated Debt Funds) shall be deemed to have voted in the same proportion as those Lenders who
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are not Defaulting Lenders or Affiliated Lenders, except with respect to (x) any amendment, waiver or other action which by its terms requires the consent of all Lenders or each affected
Lender and (y) any amendment, waiver or other action that by its terms adversely affects any such Affiliated Lender or Defaulting Lender in its capacity as a Lender in a manner that differs in any material respect from other affected Lenders,
in which case the consent of such Affiliated Lender or Defaulting Lender, as applicable, shall be required. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the
Borrowers and the Administrative Agent (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.
Notwithstanding anything to the contrary contained in this Section 10.01, (1) any
guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement 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 Borrowers without the need to obtain the consent of any Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local Law
or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects and (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents and
(2) any Acceptable Intercreditor Agreement or Loan Document may be amended, supplemented or otherwise modified in accordance with its terms and subject only to the consent of the parties thereto that are expressly required to make such
amendments, supplements or other modifications. Furthermore, with the consent of the Administrative Agent at the request of the Borrowers (without the need to obtain any consent of any Lender), any Loan Document may be amended to cure ambiguities,
inconsistencies, omissions, mistakes or defects.
Notwithstanding anything in this Section 10.01 to the contrary,
(a) technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary (i) to integrate any Incremental Term Loans, Refinancing Term Loans or
Extended Term Loans, (ii) [reserved], (iii) to integrate and terms or conditions from any Incremental Facility Amendment that are more restrictive than this Agreement in accordance with Section 2.14(d) and (iv) to make any
amendments permitted by Section 1.03 and (b) without the consent of any Lender, the Loan Parties and the Administrative Agent or any collateral agent may (in their respective sole discretion, or shall, to the extent required by any
Loan Document) enter into (x) any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any
Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local law to give effect to, or protect any security interest for benefit of the Secured Parties, in any property or so that the security
interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document or (y) any Acceptable Intercreditor Agreement pursuant to the terms thereof, in
each case with the holders of Indebtedness permitted by this Agreement to be secured by the Collateral. Without limitation of the foregoing, the Borrowers may, without the consent of any Lenders, upon delivery to the Administrative Agent increase
the interest rates (including any interest rate margins or interest rate floors), fees and other amounts payable to any Class or Classes of Lenders hereunder.
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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 email or facsimile transmission). 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) if to any Borrower or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 10.02 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 written notice to the Borrowers and the Administrative Agent.
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 (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(b)), when delivered; provided that notices and
other communications to the Administrative Agent pursuant to Article II shall not be effective until actually received by such Person during the person’s normal business hours. In no event shall a voice mail message be effective as a
notice, communication or confirmation hereunder.
(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to
notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrowers may, in
their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement);
provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address therefor.
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(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent, Lead Arrangers or any of their respective Agent-Related Persons (collectively, the “Agent Parties”) have any liability to the Loan
Parties, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the Administrative Agent’s transmission of Borrower
Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Parent Borrower, the Borrowers, the Administrative
Agent may change its address, electronic mail address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, electronic mail address, facsimile
or telephone number for notices and other communications hereunder by notice to the Borrowers and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agents from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore,
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 Borrower Materials 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 Borrowers or their securities for purposes of United States Federal or state
securities laws.
(e) Reliance by Agents and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act
upon any notices (including telephonic Committed Loan Notices) purportedly given by or on behalf of the Borrowers 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 Borrowers shall indemnify each Agent-Related Person and 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 any Borrower in the absence of gross negligence or willful misconduct. All telephonic notices to the Administrative Agent may be recorded by
the Administrative Agent and each of the parties hereto hereby consents to such recording.
(f) Notice to other Loan Parties. The
Borrowers agree that notices to be given to any other Loan Party under this Agreement or any other Loan Document may be given to the Borrowers in accordance with the provisions of this Section 10.02 with the same effect as if given to
such other Loan Party in accordance with the terms hereunder or thereunder.
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(g) Communications. Each Loan Party hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial
and other reports, certificates and other information materials, but excluding any such communication (unless otherwise approved in writing by the Administrative Agent) that (i) relates to a request for a new, or a conversion of an existing,
Borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor,
(iii) provides a notice of intent to exercise a Cure
Right[reserved], (iv) provides notice of any
Default under this Agreement or (v) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder (all such non excluded communications,
collectively, the “Specified Communications”; and all such excluded and non-excluded communications, the “Communications”), by transmitting the Specified Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent at such e-mail address(es) provided to the Borrowers from time to time or in such other form, including hard copy delivery thereof, as the Administrative Agent shall require. In addition, each Loan
Party agrees to continue to provide the Specified Communications to the Administrative Agent in the manner specified in this Agreement or any other Loan Document or in such other form, including hard copy delivery thereof, as the Administrative
Agent shall reasonably request. Nothing in this Section 10.02 shall prejudice the right of the Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any
other manner specified in this Agreement or any other Loan Document or as any such Agent shall require.
Section 10.03. No
Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent or 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 Borrowers agree (a) if the Closing Date occurs, to pay or reimburse the
Administrative Agent and the Lead Arrangers for all reasonable and documented or invoiced out-of-pocket costs and expenses associated with the syndication of the Loans and Commitments and the preparation, execution and delivery, administration,
amendment, modification, waiver and/or enforcement 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), including all Attorney Costs of Davis Polk & Wardwell LLP (and any other counsel retained with the Borrowers’ consent (such consent not to be unreasonably withheld or delayed)) and one local and foreign counsel in
each relevant jurisdiction, and (b) to pay or reimburse the Administrative Agent, the Lead Arrangers and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or
remedies under this Agreement or the other Loan Documents (including all costs and expenses incurred in connection with any workout or restructuring in respect of the Loans, all such costs and expenses incurred
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during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs of one counsel for all such Persons (and, in the case of an actual or perceived
conflict of interest, where such Person affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Person)). The foregoing costs and expenses shall include
all reasonable search, filing, 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 Term Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid promptly upon receipt by the Borrowers of an invoice relating thereto setting forth such expenses in
reasonable detail. 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.
Section 10.05.
Indemnification by the Borrowers Indemnification by the Borrowers. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall
indemnify and hold harmless each Agent-Related Person, each Lender, each Lead Arranger and their respective Affiliates and their and their Affiliates’ respective partners, directors, officers, employees, counsel, agents, advisors, and other
representatives (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, claims, and reasonable and documented or invoiced out-of-pocket fees and expenses (including reasonable Attorney Costs of
one counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of an actual or
perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrowers of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee)) of any such Indemnitee arising
out of or relating to any claim or any litigation or other proceeding (regardless of whether such Indemnitee is a party thereto and whether or not such proceedings are brought by any Borrower, its equity holders, its Affiliates, creditors or any
other third person) that relates to the
TransactionTransactions
, including the financing contemplated hereby, 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 the use or proposed use of the proceeds therefrom, or (c) any actual or alleged presence or Release or threat of Release of Hazardous Materials on, at,
under or from any property currently or, to the extent caused by any Borrower, any other Loan Party or any of their respective Subsidiaries, formerly owned, leased or operated by any Borrower, any other Loan Party or any of their respective
Subsidiaries, or any Environmental Liability of any Borrower, any other Loan Party or any of their respective Subsidiaries, or (d) 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) (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 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
controlled Affiliates or controlling Persons or any of the partners, officers, directors, employees, agents, advisors or members of any of the foregoing, in each case who are involved in or aware of the Transaction (Transactions
or the Amendment No. 2 Transactions, as applicable (in each case as determined by
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a court of competent jurisdiction in a final and non-appealable decision), (y) a material breach of the Loan Documents by such Indemnitee or one of its Affiliates (as determined by a court
of competent jurisdiction in a final and non-appealable decision) or (z) disputes solely between and among such Indemnitees to the extent such disputes do not arise from any act or omission of the Borrowers or any of their Affiliates (other
than with respect to a claim against an Indemnitee acting in its capacity as an Agent or Lead Arranger or similar role under the Loan Documents unless such claim arose from the gross negligence, bad faith or willful misconduct of such Indemnitee (as
determined by a court of competent jurisdiction in a final and non-appealable decision)). No Agent-Related Person 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 Agent-Related Person or any Loan Party 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); provided that the foregoing shall not limit any Loan Party’s indemnification obligations hereunder. 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, its directors, managers, partners, 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 is consummated. All amounts due under this Section 10.05 shall be paid within ten (10) Business Days after demand therefor; provided, however, if the Borrowers have reimbursed any Indemnitee for any
legal or other expenses in connection with any Indemnified Liabilities and there is a final non-appealable judgment of a court of competent jurisdiction that the Indemnitee was not entitled to indemnification or contribution with respect to such
Indemnified Liabilities pursuant to the express terms of this Section 10.05, then the Indemnitee shall promptly refund such expenses paid by the Borrowers to the Indemnitee. The agreements in this Section 10.05 shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Term 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 other than Taxes that represent liabilities, obligations, losses, damages, etc., with respect to a non-Tax claim.
Section 10.06. Payments Set Aside. To the extent that any payment by or on behalf of the Borrowers 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 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
Federal Funds Effective Rate (or if the Federal Funds Effective Rate is not available, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation).
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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 as otherwise provided herein (including without limitation as permitted under Section 7.04), neither the Parent Borrower nor any of its Subsidiaries may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee, (ii) by way of participation in accordance
with the provisions of Section 10.07(e), (iii) by way of
pledge or assignment of a security interest subject to the restrictions of Section 10.07(g) or (iv) to an SPC in accordance with the provisions of Section 10.07(h) (and any other attempted assignment or transfer by any party hereto (other than to any Disqualified Lender) shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.07(e) and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)(i) Subject to the
conditions set forth in paragraph
(b))(ii) below, any Lender may assign to one or more assignees (“Eligible Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Parent Borrower; provided that, (I) no consent of the Parent Borrower shall be required for an assignment
(1) to any other Lender or any Affiliate or Approved Fund of a Lender or (2) if a Specified Event of Default has occurred and is continuing, to any Assignee and (II) the Parent Borrower shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required for any assignment
of all or a portion of a Term Loan to another Lender, Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be
subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans 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 $1,000,000 unless the Parent Borrower and the Administrative Agent otherwise consent; provided that
(1) no such consent of the Parent Borrower shall be required if a Specified Event of Default has occurred and is continuing and (2) 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;
(C)(1) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire and any documentation required by Section 3.01(f) and (2) the Assignee shall have delivered to the Administrative Agent all documentation and other information that the Administrative Agent reasonably requests in order
to comply with its ongoing obligations under applicable “know your customer”, and anti-money laundering rules and regulations, including the USA Patriot Act;
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(D) the Assignee shall not be a natural person, or a Disqualified Lender
(and such Assignee shall be required to represent that it is not a Disqualified Lender or an Affiliate of a Disqualified Lender that would constitute a Disqualified Lender but for the fact that it is not readily identifiable as such on the basis of
the similarity of its name); provided that whether a prospective assignee is a Disqualified Lender may be communicated to a Lender upon request but the list of Disqualified Lenders shall not be posted or otherwise distributed to the Lenders,
prospective Lenders and prospective assignees; provided, further, that it is agreed that the Parent Borrower may withhold its consent to an assignment to any person that is known by it to be an affiliate of a Disqualified Lender (regardless
of whether it is readily identifiable as an Affiliate by virtue of its name (other than such Affiliates that are Bona Fide Debt Funds)).
(E) the Assignee shall not be a Defaulting Lender;
(F) in case of an assignment to an Affiliated Lender, (1) after giving effect to such assignment and to all other
assignments with all Affiliated Lenders, the aggregate principal amount (without duplication) of all Term Loans and Term Commitments then held by all Affiliated Lenders (other than Affiliated Debt Funds) shall not exceed 25% of the aggregate unpaid
principal amount of the Term Loans then outstanding (determined at the time of such purchase), (2) [reserved], (3) any Loans and Commitments assigned to, or purchased by, the Parent Borrower or its Restricted Subsidiaries shall be canceled
promptly upon such assignment and, in the case of any Loans or Commitments assigned to an Unrestricted Subsidiary, such Unrestricted Subsidiary shall be deemed to be an Affiliated Lender hereunder to the extent it does not cause such Loans or
Commitments to be canceled, (4) in the event that any proceeding under the Bankruptcy Code shall be instituted by or against the Borrowers or any other Guarantor, each Affiliated Lender shall acknowledge and agree that they are each
“insiders” under Section 101(31) of the Bankruptcy Code and, as such, the claims associated with the Loans and Commitments owned by it shall not be included in determining whether the applicable class of creditors holding such
claims has voted to accept a proposed plan for purposes of Section 1129(a)(10) of the Bankruptcy Code, or, alternatively, to the extent that the foregoing designation is deemed unenforceable for any reason, each Affiliated Lender shall vote in
such proceedings in the same proportion as the allocation of voting with respect to such matter by those Lenders who are not Affiliated Lenders, except to the extent that any plan of reorganization proposes to treat the Obligations held by such
Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Obligations held by Lenders that are not Affiliated Lenders; provided that this clause
(4) shall not apply to Affiliated Debt Funds, (5) [reserved], (6) such Affiliated Lender (other than Affiliated Debt Fund) will not receive information provided solely to Lenders and will not be permitted to attend or participate
in (or receive any notice of) Lender meetings or conference calls and will not be entitled to challenge the Administrative Agent’s and the Lenders’ attorney-client privilege as a result of their status as Affiliated Lenders,
(7) [reserved] and (8) notwithstanding anything
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to the contrary contained herein, any such Loans acquired by an Affiliated Lender (other than any Borrower) may, with the consent of the Parent Borrower, be contributed to the Borrowers (whether
through any of its direct or indirect parent entities or otherwise) and exchanged for debt or equity securities of Ultimate Parent Entity or such other direct or indirect parent that are otherwise permitted to be issued at such time;
(G) [reserved];
(H) the Parent Borrower and its Subsidiaries may not purchase any Loans or Commitments so long as any Event of Default has
occurred and is continuing;
(I) any purchases by Affiliated Lenders shall require that such Affiliated Lender clearly
identify itself as an Affiliated Lender in any Assignment and Assumption executed in connection with such purchases or sales and each such Assignment and Assumption shall contain customary “big boy” representations but no requirement to
make representations as to the absence of any material non-public information; and
(J) 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 (unless the action in question affects any Affiliated Lenders (other than Affiliated Debt Funds) in a disproportionately adverse manner
than its effect on the other Lenders), or any plan of reorganization pursuant to the Bankruptcy Code, (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 Loans and Commitments held by Affiliated Debt Funds may not account for more than 49.9% (pro rata among such Affiliated Debt Funds) of the Loans
and Commitments (without duplication) of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Section 10.01, and no Affiliated Lender (other than Affiliated Debt Fund) 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:
(1) all Loans and Commitments held by any Affiliated Lenders (other than Affiliated Debt Funds) shall be deemed to be not
outstanding for all purposes of calculating whether the Required Lenders have taken any actions; and
(2) all Loans and
Commitments held by Affiliated Lenders (other than Affiliated Debt Funds) 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.
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(K) Notwithstanding anything to the contrary contained herein, if any Loans
or Commitments are assigned or participated (x) to a Disqualified Lenders or (y) without complying with the Parent Borrower consent or notice requirements of this Section 10.07, then: (I) the Parent Borrower may require
such Person to assign its rights and obligations to one or more Eligible Assignees 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 or
Commitments, in each case, without premium, penalty, prepayment fee or breakage (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 (3) 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, (II) no such Person shall receive any information or reporting provided by the Parent Borrower, the Administrative Agent or any Lender, (III) 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, (IV) 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 (III) above) so approves, and (V) 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 Parent
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 not apply to
any assignee of a Disqualified Lender that becomes a Lender so long as such assignee is not a Disqualified Lender or an Affiliate thereof.
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.
(c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.07(d) and receipt by the Administrative Agent from the
parties to each assignment of a processing and recordation fee of $3,500 (provided that (x) the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and
(y) such processing and recordation fee shall not be payable in the case of assignments by any Affiliate of the Lead Arrangers), from and after the effective date specified in each Assignment and Assumption, 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 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, 3.03, 3.04, 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 (if any), the Borrowers (at their 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
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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(e). For greater certainty, any assignment by a Lender
pursuant to this Section 10.07 shall not in any way constitute or be deemed to constitute a novation, discharge, recession, extinguishment or substitution of the existing Indebtedness and any Indebtedness so assigned shall continue to be
the same obligation and not a new obligations.
(d) The Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts
(and related interest amounts) of the Loans, owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent demonstrable error, and the Borrowers, the
Agents 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 Borrowers, any Agent and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(e) Any
Lender may at any time, without the consent of, or notice to, the Parent Borrower, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural person, an Affiliated Lender (but excluding Affiliated Debt Funds)
or, so long as whether a prospective participant is a Disqualified Lender may be provided to a Lender upon request, a Disqualified Lender) (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 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 Borrowers, 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 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 Section 10.01(a), (b), (c), (d), (e) or (f) that directly affects such Participant. Subject to Section 10.07(f), the Borrowers agree that each Participant shall
be entitled to the benefits of Sections 3.01, 3.03 and 3.04 (through the applicable Lender), subject to the requirements and limitations of such Sections (including Section 3.01(f)) and Sections 3.05 and
3.06, to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 10.07(b) (provided that any documentation
required to be provided under Section 3.01(f) shall be provided solely to the participating Lender). 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 to be subject to Section 2.13 as though it were a Lender. Any Lender that sells participations shall maintain a register on which it enters the name and the address of
each Participant and the principal amounts and related interest amounts of each Participant’s participation interest in the Commitments and/or Loans (or other rights or obligations) held by it (the “Participant Register”).
The entries in the Participant Register shall be conclusive, absent demonstrable error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation interest as the owner thereof for
all purposes notwithstanding any notice to the contrary. In maintaining the Participant Register, such Lender shall be acting as the non-fiduciary agent of the Borrowers solely for this purpose and undertakes no duty, responsibility or obligation to
the Borrowers (without limitation, in no event shall such Lender be a fiduciary of the Borrowers for any purpose). No
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Lender shall have any obligation to disclose all or any portion of a 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 its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under
Section 5f.103-1(c) of the United States Treasury Regulations or, if different, under Sections 871(h) or 881(c) of the Code.
(f) A
Participant shall not be entitled to receive any greater payment under SectionSections 3.01, 3.03 and 3.04 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 Borrowers’ prior written consent and such consent explicitly
acknowledges such participant’s right to receive greater payment or except to the extent such entitlement to a greater payment results from a Change in Law after such Participant became a Participant.
(g) Any Lender may 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 other central bank; 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.
(h) 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 Borrowers
(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 and (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. Each party hereto
hereby agrees that (i) an SPC shall be entitled to the benefit of Sections 3.01, 3.03 and
3.04, subject to the requirements and limitations of such
Sections (including
SectionSections
3.01(e) and (f) and Sections 3.05 and 3.06), to the same extent as if such SPC were a Lender, 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 Borrowers under this Agreement (including its obligations under Section 3.01, 3.03 and 3.04) except to the extent any
entitlement to greater amounts results from a Change in Law after the grant to the SPC occurred, (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable and such
liability shall remain with the Granting Lender, 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 Borrowers and the Administrative Agent, 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 Obligation or credit or liquidity enhancement to such SPC.
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(i) Notwithstanding anything to the contrary contained herein, (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) any Lender that is a Fund may create a security interest in all or any portion of the Loans owing
to it and the Note, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that unless and until such trustee 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 trustee shall not be entitled to exercise any
of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary herein, so long as no Specified Event of Default pursuant exists, any Lender may assign all or any portion of its Term Loans, Incremental Term Loans and Extended
Term Loans hereunder to the Parent Borrower or any of its Subsidiaries, but only if:
(i)(A) such assignment is made
pursuant to Section 2.05(d) or (B) such assignment is made as an open market purchase;
(ii) any such Term
Loans shall be promptly and permanently cancelled upon acquisition thereof by the Parent Borrower or any of its Subsidiaries; and
(iii) no proceeds of the Existing OMI
CreditFirst Lien Revolving Credit Facility
Agreement will be used to fund such assignment or purchase.
(k) No Agent-Related Person shall 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; further, without limiting the generality of the foregoing clause, no Agent-Related Person shall (x) be
obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) 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.
Section 10.08. Confidentiality
Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information
and to not use or disclose such information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ partners, directors, officers, employees, trustees, investment advisors, professionals and other
experts or agents, including accountants, legal counsel, independent auditors and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to
keep such Information confidential); (b) to the extent requested by any Governmental Authority, to any pledgee referred to in Section 10.07(g); (c) to the extent required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions substantially the same as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the
Borrowers), to any pledgee referred to in Section 10.07(i), 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; (f) with the written consent of the Borrowers; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08; (h) to any Governmental Authority or
examiner regulating any Lender; (i) 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 the Loan
Parties received by it from such Lender); (j) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this
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Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (k) to the extent that such Information is received by such Lender or any of its Affiliates from a
third party that is not, to such Lender’s knowledge, subject to any contractual or fiduciary confidentiality obligations owing to the Borrowers or any of their Affiliates; (l) to the extent that such Information is independently developed
by such Lender or any of its
Affiliates,;
(m) to the extent consisting of customary disclosure regarding portfolio holdings in any public filing by such Lender or (n) upon the request or demand of any Governmental Authority or other
regulatory authority having jurisdiction over the Agent or Lenders, as applicable, (in which case the Agent or Lenders, as applicable, agree (except with respect to any audit or examination conducted by bank accountants or any regulatory authority
exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform the Borrowers promptly thereof prior to disclosure). In addition, the Agents and the Lenders may disclose
the existence of this Agreement and 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 any Loan Party or its
Affiliates or its Affiliates’ directors, managers, officers, employees, trustees, investment advisors or agents, relating to the Parent Borrower, the Borrowers or any of their Subsidiaries or their business, other than any such information
that is available to any Agent or any Lender on a nonconfidential basis and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending
industry prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08, including, without limitation, information delivered pursuant to Section 6.01, 6.02 or 6.03 hereof.
Section 10.09.
Setoff
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 Agent and its Affiliates, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by
the Borrowers (on their own behalf and on behalf of each Loan Party and 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 (in any currency) (other than any payroll, trust and tax accounts) at any time owing by, such Agent and its Affiliates or such Lender and its Affiliates, as the case may be, to or for the credit or the account of
the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Agent and its Affiliates, such Lender and its Affiliates or under any other Loan Document, now or hereafter existing, irrespective of whether or not
such Agent, such Lender such 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. Notwithstanding anything to the contrary contained herein, none of each Agent and its Affiliates, each Lender and its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Agent or its
Affiliates, such Lender or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender agrees promptly to notify the
Borrowers 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 each Agent, each
Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that such Agent, such Lender may have.
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Section 10.10.
CounterpartsCounterparts
. 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 signed 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 10.11.
IntegrationIntegration. 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 10.12. 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. The provisions of Sections 10.14 and 10.15 shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied.
Section 10.13.
SeverabilitySeverability. 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.
Section 10.14.
GOVERNING LAW, JURISDICTION, SERVICE OF PROCESS. .
(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
(EXCEPT AS OTHERWISE EXPRESSLY PROVIDED THEREIN).
(b) EXCEPT AS SET FORTH IN THE FOLLOWING PARAGRAPH, 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 THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE (PROVIDED THAT IF NONE OF SUCH
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COURTS CAN AND WILL EXERCISE SUCH JURISDICTION, SUCH EXCLUSIVITY SHALL NOT APPLY), AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWERS, THE PARENT BORROWER, EACH AGENT AND EACH LENDER
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWERS, THE PARENT BORROWER, 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.
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY
LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION (I) FOR PURPOSES OF ENFORCING A JUDGMENT, (II) IN
CONNECTION WITH EXERCISING REMEDIES AGAINST THE COLLATERAL IN A JURISDICTION IN WHICH SUCH COLLATERAL IS LOCATED, (III) IN CONNECTION WITH ANY PENDING BANKRUPTCY, INSOLVENCY OR SIMILAR PROCEEDING IN SUCH JURISDICTION OR (IV) TO THE EXTENT THE COURTS
REFERRED TO IN THE PREVIOUS PARAGRAPH DO NOT HAVE JURISDICTION OVER SUCH LEGAL ACTION OR PROCEEDING OR THE PARTIES OR PROPERTY SUBJECT THERETO.
Section 10.15. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW 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 10.15 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 10.16. Binding EffectBinding Effect. This Agreement shall become effective when it shall have been executed by each of the Borrowers and the Parent Borrower and the Administrative Agent shall have been notified by each Lender that each such Lender
has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, each Agent and each Lender and their respective successors and assigns, except that the Borrowers shall not 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.
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Section 10.17.
Judgment CurrencyJudgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the
first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrowers in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the
other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from the Borrowers in the Agreement
Currency, the Borrowers agree, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so
purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to the Borrowers (or to any other Person who may be entitled thereto under applicable
Law).
Section 10.18.
Lender ActionLender Action. Each Lender agrees that it shall not take or institute any actions or
proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents or the Secured Hedge Agreements (including the exercise of any right of setoff, rights on account of any
banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the
prior written consent of the Administrative Agent. The provisions of this Section 10.18 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.
Section 10.19.
Know-Your-Customer, Etc.Know-Your-Customer,
Etc.. Each Lender shall, promptly following a request by the Administrative Agent,
provide all documentation and other information that the Administrative Agent reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the USA Patriot Act.
Section 10.20. USA PATRIOT Act. Each Lender hereby notifies the Borrowers 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 the Borrowers and the Guarantors, which information includes the name and address of
the Borrowers and the Guarantors and other information that will allow such Lender to identify the Borrowers and the Guarantors in accordance with the USA PATRIOT Act and the Beneficial Ownership Regulation.
Section 10.21. Closing Date Intercreditor Agreement. Agreements.
(a) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document: (i) the Liens granted to the Collateral
Agent in favor of the Secured Parties pursuant to the Loan Documents and the exercise of any right related to any Collateral shall be subject, in each case, to the terms of the
Closing DatePari
Passu First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and any other Acceptable Intercreditor Agreement then in effect, (ii) in the event of any conflict between
the express terms and provisions of this Agreement or any other Loan Document, on the one hand, and the Closing DatePari Passu First Lien Intercreditor Agreement, the Junior Lien
Intercreditor Agreement and/or such other Acceptable Intercreditor Agreement, on the other hand, the terms and provisions of the Closing DatePari Passu First Lien
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Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or such other Acceptable Intercreditor Agreement, shall control, and (iii) each Lender (and, by its acceptance of the benefits of any Collateral Document, each other Secured
Party) hereunder authorizes and instructs the Administrative Agent and Collateral Agent to execute the Closing DatePari Passu First Lien Intercreditor Agreement, the Junior Lien
Intercreditor Agreement and any other Acceptable Intercreditor Agreement from time to time on behalf of such Lender, and such Lender agrees to be bound by the terms thereof.
(b) Each Lender (and, by its acceptance of the benefits of any Collateral Document, each other Secured Party) hereunder authorizes and
instructs the Collateral Agent, as Collateral Agent and on behalf of such Lender or other Secured Party, to enter into one or more Acceptable Intercreditor Agreements from time to time and agrees that it will be bound by and will take no actions
contrary to the provisions thereof.
(c)
Notwithstanding anything under any Loan Document to the contrary, until such time as the Discharge of the First Lien Obligations (each, as defined in the First Lien Pari Passu Intercreditor Agreement) or the Discharge of Senior Obligations (each, as
defined in the Junior Lien Intercreditor Agreement) has occurred, (i) any covenant under any Loan Document requiring (or any representation or warranty hereunder to the extent that it would have the effect of requiring) the delivery of
possession or control to the Administrative Agent or the Collateral Agent of the Shared Collateral (as defined in the First Lien Pari Passu Intercreditor Agreement) or Senior Collateral (as defined in the Junior Lien Intercreditor Agreement) shall
be deemed to have been satisfied (or, in the case of any representation and warranty, shall be deemed to be true) if, prior to the Discharge of the First Lien Obligations (each, as defined in the First Lien Pari Passu Intercreditor Agreement) or the
Discharge of Senior Obligations (each, as defined in the Junior Lien Intercreditor Agreement), such possession or control shall have been, subject to and in accordance with the First Lien Pari Passu Intercreditor Agreement or the Junior Lien
Intercreditor Agreement, delivered to the Bailee Agent (as defined in the First Lien Pari Passu Intercreditor Agreement) and (ii) any covenant under any Loan Document requiring (or any representation or warranty hereunder to the extent it would
have the effect of requiring) the giving of any notice to the Administrative Agent or the Collateral Agent or any other Person, the provision of voting rights or the obtaining of any consent of the Collateral Agent or any Person, in each case,
solely in connection with any Shared Collateral or any Senior Collateral, shall be deemed to be satisfied if the applicable grantor complies with the requirements of the similar provision of the RCF Security Agreement (or any replacement thereof in
respect of the RCF Obligations or, following the Discharge of the RCF Obligations, the equivalent Security Document that the Controlling Collateral Agent is party to) (each, as defined in the First Lien Pari Passu Intercreditor Agreement) or the RCF
Security Agreement (or any replacement thereof in respect of the RCF Obligations or, following the Discharge of the RCF Obligations, the equivalent Security Document that the Controlling Collateral Agent is party to) (each, as defined in the Junior
Lien Intercreditor Agreement). For the avoidance of doubt, no right, power or remedy granted to the Collateral Agent under any Loan Document shall be exercised by the Collateral Agent, and no direction shall be given by the Collateral Agent, in
contravention of any of the First Lien Pari Passu Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any other Acceptable Intercreditor Agreement.
(d) It is
understood and agreed that, prior to the Discharge of the First Lien Obligations (each, as defined in the First Lien Pari Passu Intercreditor Agreement), notwithstanding anything contained in any Loan Document to the contrary, to the extent that the
First Lien Revolving Credit Facility Collateral Agent is satisfied with, or agrees to any deliveries or documents required to be provided in respect of any matters relating to, the Shared Collateral or makes any administrative
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determination in respect of any matters relating to the Shared
Collateral (including, without limitation, reasonable extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular
assets (including extensions beyond the Amendment No. 2 Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Amendment No. 2 Effective Date, and any determination that the cost, burden,
difficulty, or consequence of obtaining or perfecting a security interest in a particular asset outweighs the benefit of a security interest to the relevant Secured Parties (as defined in the First Lien Pari Passu Intercreditor Agreement) afforded
thereby)), the Administrative Agent and the Collateral Agent (without any independent review, verification or determination) shall be deemed to be satisfied with such deliveries and/or documents and the judgment of the First Lien Revolving Credit
Facility Collateral Agent in respect of any such matters shall be deemed to be the judgment of the Administrative Agent and the Collateral Agent in respect of such matters under this Agreement and the other Loan Documents and the Administrative
Agent and the Collateral Agent shall have no responsibility or liability relating thereto. Following the Discharge of the RCF Obligations (each, as defined in the First Lien Pari Passu Intercreditor Agreement), any determination under the Loan
Documents that is stated to be or is required to be made by the First Lien Revolving Credit Facility Collateral Agent shall be made by the Controlling Collateral Agent (as defined in the First Lien Pari Passu Intercreditor Agreement) provided that if the Controlling Collateral Agent is the Collateral Agent, any such determination shall be made by the Parent
Borrower in good faith.
Section 10.22. Obligations AbsoluteObligations
Absolute. To the fullest extent permitted by applicable Law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Loan Party;
(b) any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party;
(c) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment
or waiver of or any consent to any departure from any Loan Document or any other agreement or instrument relating thereto;
(d) any
exchange, release or non-perfection of any other Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;
(e) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or
(f) any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties.
Section 10.23. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby
(including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Borrowers and the Parent Borrower acknowledge and agree, and acknowledge their Affiliates’ understanding, that:
(i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Lead Arrangers are arm’s-length commercial transactions between the Borrowers, the
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Parent Borrower and their respective Affiliates, on the one hand, and the Administrative Agent and the Lead Arrangers, on the other hand, (B) each of the Borrowers and the Parent Borrower
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Borrowers and the Parent Borrower is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, each Lender and each Lead Arrangers each is and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, the Parent Borrower or any of their respective Affiliates, or any other Person and (B) neither the Administrative
Agent, nor any Lender or Lead Arrangers has any obligation to the Borrowers, the Parent Borrower or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (iii) the Administrative Agent, each Lender and each Lead Arranger and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, the
Parent Borrower and their respective Affiliates, and neither the Administrative Agent nor any Lead Arranger has any obligation to disclose any of such interests to the Borrowers, the Parent Borrower or any of their respective Affiliates. To the
fullest extent permitted by law, each of the Borrowers and the Parent Borrower hereby waives and releases any claims that it may have against the Administrative Agent, each Lender and each Lead Arranger with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 10.24. Electronic
Execution of Assignments and Certain Other Documents. 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 Assignment and Assumptions, amendments or other Committed Loan Notices, waivers and consents) 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 recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York
State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no
obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
Section 10.25. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary
in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such
liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder
which may be payable to it by any party hereto that is an Affected Financial Institution; and
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(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected
Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in
connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
Section 10.26. Lender RepresentationLender
Representation. Each Lender as of the Closing Date represents and warrants as of the Closing Date that such Lender is not and will not be (a) an employee benefit plan subject to
Title I of ERISA, (b) a plan or account subject to Section 4975 of the Code, (c) an entity deemed to hold Plan Assets of any such plans or accounts or (d) a “governmental plan” within the meaning of Section 3(32)
of ERISA. No portion of any Loan shall be funded or held with Plan Assets.
Section 10.27. Acknowledgement Regarding any
Supported QFCs . To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Secured Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit
Support” and, each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title
II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such
interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special
Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is
understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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(b) As used in this Section 10.27, 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:
(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) 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).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANKSIGNATURE
PAGES NOT
RESTATED AS OF THE AMENDMENT NO.2 EFFECTIVE DATE.]
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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
OWENS & MINOR, INC.
as the Parent Borrower
By:
Name:
Title:
OWENS & MINOR DISTRIBUTION, INC.,
as a Borrower
By:
Name:
Title:
OWENS & MINOR MEDICAL, INC.,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
as a Borrower
By:
Name:
Title:
O&M HALYARD, INC.,
as a Borrower
By:
Name:
Title:
[Signature Page To Term Loan Credit
Aggrement]
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Title:
[Signature Page To Term Loan Credit
Aggrement]
JPMORGAN CHASE, N.A.,
as Administrative Agent and Collateral Agent
By:
Name:
Title:
[Signature Page To Term Loan Credit
Aggrement]
[LENDER]
as a Lender
By:
Name:
Title:
[Signature Page To Term Loan Credit
Aggrement]
EXHIBIT E
to Amendment No. 2 to Term Loan Credit Agreement and Consent
First Lien Intercreditor Agreement
[See attached.]
Execution Version
AMENDED AND RESTATED
FIRST LIEN
PARI PASSU INTERCREDITOR AGREEMENT
dated as of June 15, 2026
among
BANK OF AMERICA, N.A.,
as RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as TLB
Collateral Agent,
REGIONS BANK,
as First Lien Notes Collateral Agent,
and
each Additional Collateral
Agent from time to time party hereto,
and
acknowledged and agreed by
ACCENDRA HEALTH, INC.,
as the
Parent Borrower,
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC
APRIA,
INC.,
and
BYRAM HEALTHCARE
CENTERS, INC.,
as Borrowers
and
the other Grantors from time
to time party hereto
This AMENDED AND RESTATED FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of
June 15, 2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among BANK OF AMERICA, N.A., in its capacity, together with its successors in such
capacity, as RCF Collateral Agent (as defined below) under the RCF Credit Agreement (as defined below), JPMORGAN CHASE BANK, N.A., in its capacity, together with its successors in such capacity, as the TLB Collateral Agent (as defined below)
under the TLB Credit Agreement (as defined below), REGIONS BANK, in its capacity, together with its successors in such capacity, as the First Lien Notes Collateral Agent (as defined below) under the First Lien Notes Indenture (as defined
below), and each Additional Collateral Agent (as defined below) from time to time party hereto as collateral agent for any First Lien Obligations (as defined below) of any other Class (as defined below), and acknowledged and agreed by ACCENDRA
HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company
(“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with the Parent Borrower, Barista I, Barista II
and Apria, the “Borrowers”) and the other Grantors (as defined below) party hereto.
The RCF Collateral Agent and the
TLB Collateral Agent entered into that certain First Lien Pari Passu Intercreditor Agreement dated as of March 29, 2022 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing
Intercreditor Agreement”).
Pursuant to Section 10.02(b) of the Existing Intercreditor Agreement, the RCF Collateral Agent
and the TLB Collateral Agent desire to amend and restate the Existing Intercreditor Agreement to, among other things, (i) add Regions Bank, as First Lien Notes Collateral Agent, as a party, (ii) designate the First Lien Notes Obligations
as First Lien Obligations hereunder, and (iii) amend the rights, remedies and other agreements of the parties hereto in respect of the Shared Collateral (as defined herein) as set forth in this Agreement.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION
1.01 Certain Defined Terms. Capitalized terms used but not otherwise defined herein, if defined in the New York UCC, have the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below.
“Additional Collateral Agent” has the meaning assigned to such term in Article IX.
“Additional First Lien Obligations” means all obligations of the Borrowers and the other Grantors that shall have been
designated as such pursuant to Article IX, together with any Refinancing thereof; provided, that the holders of any such Refinancing debt (or the applicable Collateral Agent on their behalf) shall, to the extent not already party hereto in such
capacity, bind themselves in writing to the terms of this Agreement.
“Additional First Lien Obligations Documents”
means the notes, the indentures, security documents or any other agreements or instruments under which Additional First Lien Obligations of any Series are issued or incurred and all other instruments, agreements and other documents evidencing or
governing Additional First Lien Obligations of such Series or providing any guarantee, Lien or other right in respect thereof.
“Additional Secured Parties” means the holders of any Additional First
Lien Obligations and any collateral agent named as authorized representative for such Series in the Collateral Agent Joinder Agreement.
“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. For purposes of this definition, “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, and “controlling” and “controlled” have meanings correlative thereto.
“Agents/Trustees” means the RCF Administrative Agent, the TLB Administrative Agent, the First Lien Notes Trustee, and any
administrative agent or trustee (in its capacity as such) for any Additional First Lien Obligations of any Series.
“Agreement” has the meaning assigned to such term in the preamble hereto.
“Amend” means, in respect of any agreement, to amend, restate, supplement, waive or otherwise modify such agreement, in
whole or in part. The terms “Amended” and “Amendment” shall have correlative meanings.
“Authorized Officer” means, with respect to any Person, the chief executive officer, the chief financial officer, principal
accounting officer, the president, any vice president, treasurer, general counsel, secretary or another executive officer of such Person.
“Bailee Agent” means, (a) prior to the Discharge of the RCF Obligations, the RCF Collateral Agent, and
(b) following the Discharge of the RCF Obligations, the Controlling Collateral Agent.
“Bankruptcy Case” has the
meaning assigned to such term in Section 5.01(b).
“Bankruptcy Code” means Title 11 of the United States Code, as
amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign law for the relief of
debtors.
“Borrowers” has the meaning assigned to such term in the preamble hereto.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or the
place of payment are authorized or required by law to remain closed.
“Class”, when used in reference to:
(a) any First Lien Obligations, refers to whether such First Lien Obligations are the RCF Obligations, the TLB Obligations, the First Lien
Notes Obligations or the Additional First Lien Obligations of any Series;
(b) any Agent/Trustee refers to whether such Agent/Trustee is
the RCF Administrative Agent, the TLB Administrative Agent, the First Lien Notes Trustee, or the administrative agent or trustee (in its capacity as such) for any Additional First Lien Obligations of any Series;
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(c) any Collateral Agent, refers to whether such Collateral Agent is the RCF Collateral
Agent, the TLB Collateral Agent, the First Lien Notes Collateral Agent or the Additional Collateral Agent with respect to the Additional First Lien Obligations of any Series;
(d) any Secured Parties, refers to whether such Secured Parties are the RCF Secured Parties, the TLB Secured Parties, the First Lien Notes
Secured Parties or the holders of the Additional First Lien Obligations of any Series;
(e) any Secured Credit Documents, refers to
whether such Secured Credit Documents are the RCF Documents, the TLB Documents, the First Lien Notes Documents, or the Additional First Lien Obligations Documents with respect to Additional First Lien Obligations of any Series; and
(f) any Security Documents, refers to whether such Security Documents are the RCF Security Agreement (and the other Collateral Documents (as
defined in the RCF Credit Agreement)), the TLB Security Agreement (and the other Collateral Documents (as defined in the TLB Credit Agreement)), the First Lien Notes Security Documents, or the security documents with respect to Additional First Lien
Obligations of any Series.
“Collateral” means all assets of any of the Borrowers or any of the Grantors now or
hereafter subject to a Lien securing any First Lien Obligation.
“Collateral Agent Joinder Agreement” means a
supplement to this Agreement substantially in the form of Exhibit I.
“Collateral Agents” means the RCF Collateral
Agent, the TLB Collateral Agent, the First Lien Notes Collateral Agent and each Additional Collateral Agent.
“Common
Currency” means U.S. dollars.
“Controlling Class” means, at any time, the Class of First Lien Obligations
that, at such time, constitutes the largest outstanding principal amount of any outstanding Class of First Lien Obligations.
“Controlling Collateral Agent” means, with respect to any Shared Collateral, (a) until the occurrence of the
Non-Controlling Collateral Agent Enforcement Date, the Collateral Agent for the Controlling Class (which, as of the date hereof, is the First Lien Notes Collateral Agent) with respect to such Shared Collateral provided that, following the
Discharge of either the TLB Obligations or the First Lien Notes Obligations (other than, in each case, in connection with a Refinancing (or successive Refinancings) thereof), the Controlling Collateral Agent shall act at the direction of the
Required Secured Parties of each Class of First Lien Obligations that remains outstanding and (b) on and after the Non-Controlling Collateral Agent Enforcement Date, the Major Non-Controlling Collateral Agent with respect to such Shared
Collateral. At or prior to becoming the Controlling Collateral Agent, the applicable Collateral Agent shall become party to the Junior Lien Intercreditor Agreement.
“Controlling Secured Parties” means, with respect to any Shared Collateral, the Secured Parties whose Collateral Agent is
the Controlling Collateral Agent with respect to such Shared Collateral.
“Credit Participation” means in relation to
any Class of First Lien Obligations, as applicable, the aggregate amount of drawn and undrawn commitments under any credit agreement or similar instrument in respect thereof, the principal amount of outstanding notes in respect thereof, or the
principal amount otherwise outstanding in respect thereof, in each case, calculated in accordance with the terms of the applicable Secured Credit Document.
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“Default” means a “Default” (or similar event, however
denominated) as defined in any Secured Credit Document.
“DIP Financing” has the meaning assigned to such term in
Section 5.01(b).
“DIP Financing Liens” has the meaning assigned to such term in Section 5.01(b).
“DIP Lenders” has the meaning assigned to such term in Section 5.01(b).
“Discharge” means, with respect to any Shared Collateral and any Class of First Lien Obligations, the date on which such
Class of First Lien Obligations is no longer secured by such Shared Collateral. The term “Discharged” shall have a corresponding meaning.
“Event of Default” means an “Event of Default” (or similar event, however denominated) as defined in any
Secured Credit Document.
“First Lien Obligations” means (a) all the RCF Obligations, (b) all the TLB
Obligations, (c) all the First Lien Notes Obligations and (d) all the Additional First Lien Obligations.
“First Lien
Notes Collateral Agent” means the “Notes Collateral Agent” as defined in the First Lien Notes Indenture which, as of the date hereof, is Regions Bank.
“First Lien Notes Documents” means the “Note Documents” as defined in the First Lien Notes Indenture.
“First Lien Notes Indenture” means that certain Indenture relating to those certain 9.000% Senior Secured First Lien Notes
due 2032, dated as of the date hereof, among the Parent Borrower, the guarantors party thereto, and Regions Bank, as trustee and notes collateral agent, and one or more other financing arrangements (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any Refinancing thereof; provided
(a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Collateral Agent Joinder Agreement and (b) that in the case of any
Refinancing, the Parent Borrower designates the applicable agreements as the “First Lien Notes Indenture” (and not an Additional First Lien Obligations Document) hereunder.
“First Lien Notes Obligations” means the “Notes Obligations” as such term is defined in the First Lien Notes
Indenture, together with any Refinancing thereof.
“First Lien Notes Secured Parties” means the “Notes Secured
Parties” as defined in the First Lien Notes Indenture.
“First Lien Notes Security Documents” means the
“Notes Security Documents” as defined in the First Lien Notes Indenture.
“First Lien Notes Trustee” means
the “Trustee” as defined in the First Lien Notes Indenture which, as of the date hereof, is Regions Bank.
“First
Non-Controlling Class” has the meaning assigned to such term in the definition of “Major Non-Controlling Collateral Agent”.
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“Grantor Joinder Agreement” means a supplement to this Agreement
substantially in the form of Exhibit II.
“Grantors” means, at any time, each Borrower and each Subsidiary of the
Parent Borrower that, at such time, pursuant to Security Documents of any Class have granted a Lien on any of its assets to secure any First Lien Obligations of such Class (including any Subsidiary which becomes a party to this Agreement as
contemplated by Section 10.12).
“Impairment” has the meaning assigned to such term in Section 2.02.
“Indebtedness” has the meaning assigned to such term in the RCF Credit Agreement, TLB Credit Agreement or the First Lien
Notes Indenture, as applicable.
“Insolvency or Liquidation Proceeding” means:
(a) any case or proceeding commenced by or against any Borrower or any other Grantor under any Bankruptcy Law, any other
proceeding for the reorganization, receivership, recapitalization or adjustment or marshalling of the assets or liabilities of any Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrowers
or any other Grantor or its assets or any similar case or proceeding relative to any Borrower or any other Grantor or its creditors or its assets, as such, in each case whether or not voluntary;
(b) any liquidation, dissolution, marshalling of assets or liabilities, assignment for the benefit of creditors or other
winding up of or relating to any Borrower or any other Grantor or its assets, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency and whether or not in a court supervised proceeding; or
(c) any other proceeding of any type or nature in which substantially all claims of creditors of the Borrowers or any other
Grantor are determined and any payment or distribution is or may be made on account of such claims.
“Intervening
Creditor” has the meaning assigned to such term in Section 2.02.
“Intervening Lien” has the meaning
assigned to such term in Section 2.02.
“Lien” means, with respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other
title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease (as defined in the RCF Credit Agreement) having substantially the same economic effect as any of the foregoing).
“Major Non-Controlling Collateral Agent” means, with respect to any Shared Collateral, at any time, the Collateral Agent of
the Class of First Lien Obligations that, at such time, constitutes the second-largest outstanding principal amount of any outstanding Class of First Lien Obligations (such Class, the “First Non-Controlling Class”) with respect to
such Shared Collateral.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State
of New York.
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“Non-Controlling Collateral Agent” means, at any time, any Collateral
Agent that is not the Controlling Collateral Agent.
“Non-Controlling Collateral Agent Enforcement Date” means, with
respect to any Non-Controlling Collateral Agent, the date which is 180 days (throughout which 180 day period such Non-Controlling Collateral Agent was the Major Non-Controlling Collateral Agent) after the occurrence of both (a) an Event of
Default (under and as defined in the Secured Credit Documents under which such Non-Controlling Collateral Agent is the Collateral Agent) that has not been cured or waived and (b) the Controlling
Collateral Agent’s and each other Collateral Agent’s receipt of written notice from such Non-Controlling Collateral Agent certifying that (x) such Non-Controlling Collateral Agent is the Major
Non-Controlling Collateral Agent and that an Event of Default (under and as defined in the Secured Credit Documents under which such Non-Controlling Collateral Agent is the Collateral Agent) has occurred and
is continuing and has not been cured or waived and (y) the First Lien Obligations of the Class with respect to which such Non-Controlling Collateral Agent is the Collateral Agent are currently due and
payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Secured Credit Documents; provided that the Non-Controlling Collateral Agent Enforcement Date shall be stayed and shall not
occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any time the Controlling Collateral Agent has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral or
(2) at any time the Grantor that has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Non-Controlling Secured Parties” means, at any time, the Related Secured Parties of any Non-Controlling Collateral Agent.
“Parent Borrower” has the meaning assigned to such term in the preamble hereto.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, governmental authority or other entity.
“Plan of Reorganization” means any plan of reorganization, plan
of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding under the Bankruptcy Code or any other Bankruptcy Law.
“Possessory Collateral” means any Shared Collateral in the possession of a Collateral Agent (or its agents or bailees), to
the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in
each case, delivered to or in the possession of any Collateral Agent under the terms of the Security Documents.
“Post-Petition
Interest” means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not allowed or allowable as a claim in any such Insolvency or
Liquidation Proceeding.
“Proceeds” has the meaning assigned to such term in Section 2.01(b).
“Purchase Event” has the meaning assigned to such term in Section 7.06.
“Purchase Event Date” means, in relation to any Purchase Event, each of the Second Purchase Event, the Third Purchase Event
and the Fourth Purchase Event.
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“Purchase Event Expiration Date” means, in relation to any Purchase
Event, the latest date on which a Purchase Event Date occurs.
“Purchasing Secured Parties” means:
(a) on and from any Purchase Event to and including the date falling ten (10) Business Days thereafter (such date, the
“Second Purchase Event”), all or a portion of the Secured Parties that constitute the Controlling Class;
(b) after and excluding such Second Purchase Event to and including the date falling ten (10) Business Days thereafter
(such date, the “Third Purchase Event”), all or a portion of the Secured Parties that constitute the First Non-Controlling Class; and
(c) after and excluding such Third Purchase Event to and including the date falling ten (10) Business Days thereafter
(such date, the “Fourth Purchase Event”), all or a portion of the Secured Parties that constitute the Second Non-Controlling Class.
“RCF Administrative Agent” means the “Administrative Agent” as defined in the RCF Credit Agreement which, as of
the date hereof, is Bank of America, N.A.
“RCF Credit Agreement” means that certain Credit Agreement, dated as of
March 10, 2021 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of February 22, 2022, that certain Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to
Security Agreement and Amendment No. 1 to Guaranty, dated as of March 29, 2022, that certain Amendment No. 3 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement and Consent
dated as of the date hereof), by and among the Borrowers, the lenders party thereto from time to time, Bank of America, N.A., as administrative agent and collateral agent, and one or more other financing arrangements (including, without limitation,
any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any Refinancing thereof;
provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Collateral Agent Joinder Agreement and (b) that in the
case of any Refinancing, the Parent Borrower designates the applicable agreements as the “RCF Credit Agreement” (and not an Additional First Lien Obligations Document) hereunder.
“RCF Collateral Agent” means the “Collateral Agent” as defined in the RCF Credit Agreement which, as of the
date hereof, is Bank of America, N.A.
“RCF Documents” means the “Loan Documents” as defined in the RCF
Credit Agreement.
“RCF Obligations” means the “Obligations” as defined in the RCF Credit Agreement,
together with any Refinancing thereof.
“RCF Secured Parties” means the “Secured Parties” as defined in the
RCF Credit Agreement.
“RCF Security Agreement” means the “Security Agreement” as defined in the RCF Credit
Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
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“Related Secured Credit Documents” means, with respect to the Collateral
Agent or Secured Parties of any Class, the Secured Credit Documents of such Class.
“Related Secured Parties” means,
with respect to the Collateral Agent of any Class, the Secured Parties of such Class.
“Refinance” means, in respect of
any Indebtedness, to refinance, extend, exchange, renew, refund, repay, prepay, redeem, purchase, defease, retire, restructure, amend, increase, modify, supplement or replace, or to issue other Indebtedness or enter alternative financing
arrangements in exchange or replacement for, such Indebtedness, in whole or in part, including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including, in each case, but not limited to, after the original
instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” shall have correlative
meanings.
“Required Secured Parties” means, with respect to any Class at any time, holders of more than 50% of the
aggregate outstanding principal amount of the Indebtedness of such Class at such time.
“Junior Lien Intercreditor
Agreement” means that certain Junior Lien Intercreditor Agreement, dated as of the date hereof, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, among the Collateral Agents,
Regions Bank as the Initial Junior Lien Collateral Agent thereunder, the Borrowers, and the other Grantors party thereto.
“Second Non-Controlling Class” means, at any time, the Class of First Lien Obligations that, at such time, constitutes the
third-largest outstanding principal amount of any outstanding Class of First Lien Obligations.
“Secured Credit
Documents” means, collectively, (a) the RCF Documents, (b) the TLB Documents, (c) First Lien Notes Documents and (d) the Additional First Lien Obligations Documents.
“Secured Parties” means (a) the RCF Secured Parties, (b) the TLB Secured Parties, (c) the First Lien Notes
Secured Parties and (d) the Additional Secured Parties.
“Security Documents” means (a) the RCF Security
Agreement and the other Collateral Documents (as defined in the RCF Credit Agreement), (b) the TLB Security Agreement and the other Collateral Documents (as defined in the TLB Credit Agreement), (c) the First Lien Notes Security Documents
and (d) any other agreement entered into in favor of the Collateral Agent of any other Class for the purpose of securing the First Lien Obligations of such Class.
“Series”, when used in reference to Additional First Lien Obligations, refers to such Additional First Lien Obligations as
shall have been issued or incurred pursuant to the same credit agreements, indentures or other agreements and with respect to which the same Person acts as the Additional Collateral Agent.
“Shared Collateral” means, at any time, Collateral on which Collateral Agents or Secured Parties of any two or more Classes
have at such time a Lien (including as a result of the agreements set forth in Section 4.01). If First Lien Obligations of more than two Classes are outstanding at any time, then any Collateral shall constitute Shared Collateral with respect to
First Lien Obligations of any Class only if the Collateral Agent or Secured Parties of such Class have at such time a Lien on such Collateral.
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“Subsidiary” of a Person means a corporation, company, partnership, joint
venture, limited liability company or other business entity of which 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, or the management of which is otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent Borrower.
“TLB Administrative Agent” means the “Administrative Agent” as defined in the TLB Credit Agreement which, as of
the date hereof, is JPMorgan Chase Bank, N.A.
“TLB Credit Agreement” means that certain Term Loan Credit Agreement,
dated as of March 29, 2022 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 2 to Term Loan Credit Agreement and Consent dated as of the date
hereof), by and among the Borrowers, the lenders party thereto from time to time, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as amended, restated, amended and restated, extended, supplemented or otherwise modified from
time to time, together with any Refinancing thereof; provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a
Collateral Agent Joinder Agreement and (b) that in the case of any Refinancing, the Parent Borrower designates the applicable agreements as the “TLB Credit Agreement” (and not an Additional First Lien Obligations Document)
hereunder.
“TLB Documents” means the “Loan Documents” as defined in the TLB Credit Agreement.
“TLB Obligations” means the “Obligations” as such term is defined in the TLB Credit Agreement, together with
any Refinancing thereof.
“TLB Secured Parties” means the TLB Collateral Agent and the holders of the TLB Obligations
issued pursuant to the TLB Credit Agreement.
“TLB Security Agreement” means the “Security Agreement” as
defined in the TLB Credit Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
SECTION 1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to
be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any
definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or
otherwise modified, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such
subsidiaries, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections and Exhibits shall be construed to refer to Articles, and Sections of, and Exhibits to, this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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SECTION 1.03 Concerning the Collateral Agents.
(a) Each acknowledgement, agreement, consent and waiver (whether express or implied) in this Agreement made by the RCF
Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to the RCF Collateral Agent pursuant to the authorization thereof under the RCF Credit Agreement and the RCF Security
Agreement. It is understood and agreed that the RCF Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties is in compliance with the terms of this Agreement, and no
party hereto or any other Secured Party shall have any right of action whatsoever against the RCF Collateral Agent for any failure of any of its Related Secured Parties to comply with the terms hereof or for any of its Related Secured Parties taking
any action contrary to the terms hereof.
(b) Each acknowledgement, agreement, consent and waiver (whether express or
implied) in this Agreement made by the TLB Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to the TLB Collateral Agent pursuant to the authorization thereof under the
TLB Credit Agreement. It is understood and agreed that the TLB Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties is in compliance with the terms of this Agreement,
and no party hereto or any other Secured Party shall have any right of action whatsoever against the TLB Collateral Agent for any failure of any of its Related Secured Parties to comply with the terms hereof or for any of its Related Secured Parties
taking any action contrary to the terms hereof.
(c) Each acknowledgement, agreement, consent and waiver (whether express
or implied) in this Agreement made by the First Lien Notes Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to the First Lien Notes Collateral Agent pursuant to the
authorization thereof under the First Lien Notes Indenture. It is understood and agreed that the First Lien Notes Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties
is in compliance with the terms of this Agreement, and no party hereto or any other Secured Party shall have any right of action whatsoever against the First Lien Notes Collateral Agent for any failure of any of its Related Secured Parties to comply
with the terms hereof or for any of its Related Secured Parties taking any action contrary to the terms hereof.
(d) Each
acknowledgement, agreement, consent and waiver (whether express or implied) in this Agreement made by any Additional Collateral Agent, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on the authority granted to
such Additional Collateral Agent pursuant to the authorization thereof under the Additional First Lien Obligations Documents relating to such Class of First Lien Obligations. It is understood and agreed that no Additional Collateral Agent shall be
responsible for or have any duty to ascertain or inquire into whether any of its Related Secured Parties is in compliance with the terms of this Agreement, and no party hereto or any other Secured Party shall have any right of action whatsoever
against the Additional Collateral Agent for any failure of any of its Related Secured Parties to comply with the terms hereof or for any of its Related Secured Parties taking any action contrary to the terms hereof.
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ARTICLE II
Lien Priorities; Proceeds
SECTION 2.01 Relative Priorities .
(a) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Lien on any Shared
Collateral securing any First Lien Obligation, and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any other applicable law or any Secured Credit Document, or any other circumstance whatsoever (but, in each case,
subject to Section 2.01(b) and Section 2.02 of this Agreement), the Collateral Agent under each Class, for itself and on behalf of its Related Secured Parties, agrees that Liens on any Shared Collateral securing First Lien Obligations of
such Class shall be of equal priority.
(b) Each Collateral Agent, for itself and on behalf of its Related Secured Parties,
agrees that, notwithstanding (x) any provision of any Secured Credit Document to the contrary (but subject to Section 2.02 of this Agreement) and (y) the date, time, method, manner or order of grant, attachment or perfection of any
Lien on any Shared Collateral securing any Class of First Lien Obligation, and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any other applicable law or any Secured Credit Document, or any other circumstance
whatsoever (but, in each case, subject to Section 2.02 of this Agreement), if an Event of Default has occurred and is continuing and (i) such Collateral Agent or any of its Related Secured Parties takes any action to enforce rights or
exercise remedies in respect of any Shared Collateral (including any such action referred to in Section 3.01(a) of this Agreement), (ii) any distribution is made in respect of any Shared Collateral in any Insolvency or Liquidation
Proceeding of any Borrower or any other Grantor (including any adequate protection payments) or (iii) such Collateral Agent or any of its Related Secured Parties receives any payment with respect to any Shared Collateral pursuant to any
intercreditor agreement (other than this Agreement), then the proceeds or distributions of any sale, collection or other liquidation of any Shared Collateral obtained by such Collateral Agent or any of its Related Secured Parties on account of such
enforcement of rights or exercise of remedies, and any such distributions or payments received by such Collateral Agent or any of its Related Secured Parties (all such proceeds, distributions and payments being collectively referred to as
“Proceeds”), shall be applied as follows:
(i) FIRST, to the payment of all amounts owing to and all
costs and expenses incurred by any Collateral Agent or any Agents/Trustees (in each case, in their capacities as such), pursuant to the terms of any Secured Credit Document or in connection with any enforcement of rights or exercise of remedies
pursuant thereto, including all court costs and the reasonable documented fees and expenses of agents and legal counsel and, in each case, including all costs and expenses incurred in enforcing its rights to obtain such payment;
(ii) SECOND, subject to Section 2.02 of this Agreement, to the payment in full of all First Lien Obligations of each Class
secured by a Lien on such Shared Collateral at the time due and payable (the amounts so applied to be distributed, as among such Classes of First Lien Obligations, ratably in accordance with the amounts of the First Lien Obligations of each such
Class on the date of such application); provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause
SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under
Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Class of First Lien
Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and
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(b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and
(iii) THIRD, after payment in full of all the First Lien Obligations, to the Borrowers and the other Grantors or their
successors or assigns, as their interests may appear, or as a court of competent jurisdiction may direct.
(c) For the
avoidance of doubt, any amounts to be distributed pursuant to this Section 2.01 shall be distributed by the Controlling Collateral Agent to each Non-Controlling Collateral Agent for further distribution to its Related Secured Parties.
(d) It is acknowledged that the First Lien Obligations of any Class may, subject to the limitations set forth in the then
extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in
Section 2.01(b) of this Agreement or the provisions of this Agreement defining the relative rights of the Secured Parties of any Class.
SECTION 2.02 Impairments. It is the intention of the parties hereto that the Secured Parties of any given Class of First Lien
Obligations (and not the Secured Parties of any other Class of First Lien Obligations) bear the risk of any determination by a court of competent jurisdiction that (i) any First Lien Obligations of such Class of First Lien Obligations are
unenforceable under applicable law or are subordinated to any other obligations (other than to any First Lien Obligations), (ii) the Secured Parties of such Class of First Lien Obligations do not have a Lien on any of the Collateral securing
any First Lien Obligations of any other Class of First Lien Obligations and/or (iii) any Person (other than any Collateral Agent or Secured Party) has a Lien on any Shared Collateral that is senior in priority to the Lien on such Shared
Collateral securing First Lien Obligations of such Class of First Lien Obligations, but junior to the Lien on such Shared Collateral securing any other Class of First Lien Obligations (any such Lien being referred to as an “Intervening
Lien”, and any such Person being referred to as an “Intervening Creditor”) (any condition with respect to First Lien Obligations of such Class of First Lien Obligations being referred to as an
“Impairment” of such Class); provided that the existence of a maximum claim with respect to any real property subject to a mortgage that applies to all First Lien Obligations shall not be deemed to be an Impairment of any Class of
First Lien Obligations. In the event an Impairment exists with respect to First Lien Obligations of any Class, the results of such Impairment shall be borne solely by the Secured Parties of such Class of First Lien Obligations, and the rights of the
Secured Parties of such Class of First Lien Obligations (including the right to receive distributions in respect of First Lien Obligations of such Class of First Lien Obligations pursuant to Section 2.01(b) of this Agreement) set forth herein
shall be modified to the extent necessary so that the results of such Impairment are borne solely by the Secured Parties of such Class. In furtherance of the foregoing, in the event First Lien Obligations of any Class of First Lien Obligations shall
be subject to an Impairment in the form of an Intervening Lien of any Intervening Creditor, the value of any Shared Collateral or Proceeds that are allocated to such Intervening Creditor shall be deducted solely from the Shared Collateral or
Proceeds to be distributed in respect of First Lien Obligations of such Class.
SECTION 2.03 Payment Over. Each Collateral Agent of
each Class, on behalf of itself and its Related Secured Parties, agrees that if such Collateral Agent or any of its Related Secured Parties shall at any time obtain possession of any Shared Collateral or receive any Proceeds (other than as a result
of any application of Proceeds pursuant to Section 2.01(b) of this Agreement), then it shall hold such Shared Collateral or Proceeds in trust for the other Secured Parties and promptly transfer such Shared Collateral or Proceeds, as the case
may be, to the Controlling Collateral Agent, to be distributed in accordance with the provisions of Section 2.01(b) hereof.
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SECTION 2.04 Determinations with Respect to Amounts of Obligations and Liens.
Whenever the Collateral Agent of any Class shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Obligations of any other Class, or
the Shared Collateral subject to any Lien securing the First Lien Obligations of any other Class (and whether such Lien constitutes a valid and perfected Lien), it may request that such information be furnished to it in writing by the Collateral
Agent of such other Class and shall be entitled to make such determination on the basis of the information so furnished; provided that if, notwithstanding the request of the Collateral Agent of such Class, the Collateral Agent of such other Class
shall fail or refuse reasonably promptly to provide the requested information, the Collateral Agent of such Class shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine,
including by reliance upon a certificate of an Authorized Officer of the Parent Borrower. Each Collateral Agent may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of
the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any Secured Party or any other Person as a result of such determination or any action taken or not taken pursuant
thereto.
SECTION 2.05 Exculpatory Provisions. Without limitation of Article VI, none of the Collateral Agents or any Secured
Parties shall be liable for any action taken or omitted to be taken by any Collateral Agent or Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement.
ARTICLE III
Rights and
Remedies; Matters Relating to Shared Collateral
SECTION 3.01 Exercise of Rights and Remedies.
(a) Only the Controlling Collateral Agent shall act or refrain from acting with respect to any Shared Collateral (including
with respect to any intercreditor agreement with respect to any junior Liens on Shared Collateral). No Non-Controlling Collateral Agent nor any Non-Controlling Secured Party shall commence any judicial or nonjudicial foreclosure proceedings with
respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power as a secured creditor with respect to, or otherwise take any action to
enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to junior Liens on any Shared Collateral), whether
under any Secured Credit Document, applicable law or otherwise, it being agreed that only the Controlling Collateral Agent, acting in accordance with the applicable Secured Credit Documents, shall be entitled to take any such actions or exercise any
such remedies with respect to Shared Collateral at any time. Without limitation of the foregoing, (A) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Grantor, each Collateral Agent or any of its
Related Secured Parties may file a proof of claim or statement of interest with respect to the applicable obligations thereto, (B) in any Insolvency or Liquidation Proceeding commenced by or against any Borrower or any other Grantor, each
Collateral Agent or its Related Secured Parties may file any necessary or appropriate responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the
claim or Lien of such Collateral Agent or Related Secured Party, (C) except as otherwise set forth in this Agreement, each Collateral Agent or its Related Secured Parties may file any pleadings, objections, motions, or agreements which assert
rights available to unsecured creditors of any Borrower or any other Grantor arising under any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, (D) subject to clause (E) of this section 3.01(a), each Collateral Agent
and its
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Related Secured Parties may propose, support, vote in favor of or otherwise directly or indirectly support any Plan of Reorganization, plan support agreement, restructuring support agreement, or
similar arrangement relating to any Borrower or any other Grantor, in each case (A) through (D) above to the extent such action is not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement or
the terms of the Security Documents applicable to such Collateral Agent (it being understood that, with respect to clause (D), providing non-ratable allocation of consideration to any Class of First Lien Obligations then outstanding (as compared to
any other Class of First Lien Obligations) under a Plan of Reorganization, plan support agreement, restructuring support agreement or similar arrangement would be inconsistent with the terms of this Agreement) and (E) no Collateral Agent nor
any of its Related Secured Parties may propose, support, vote in favor of or otherwise directly or indirectly support any Plan of Reorganization, plan support agreement, restructuring support agreement, or similar arrangement relating to any
Borrower or any other Grantor, in each case, that provides for non-ratable allocation of consideration to any Class of First Lien Obligations then outstanding (as compared to any other Class of First Lien Obligations) or is otherwise inconsistent
with the terms of this Agreement, in each case, unless the Required Secured Parties in respect of such differently and adversely treated Class(es) of First Lien Obligations consents.
(b) Notwithstanding the equal priority of the Liens securing each Class of First Lien Obligations with respect to the Shared
Collateral, the Controlling Collateral Agent may deal with the Shared Collateral as if such Controlling Collateral Agent had a senior Lien on such Collateral. No Non-Controlling Collateral Agent or Non-Controlling Secured Party will contest, protest
or object to any foreclosure proceeding or action brought by the Controlling Collateral Agent or any Controlling Secured Party or any other exercise by the Controlling Collateral Agent or any Controlling Secured Party of any rights and remedies
relating to the Shared Collateral. The foregoing shall not be construed to: (i) limit the rights and priorities of any Secured Party or any Collateral Agent with respect to any Collateral not constituting Shared Collateral, (ii) impair any
rights available to them as unsecured creditors or (iii) impair the rights of any Non-Controlling Collateral Agent or any Non-Controlling Secured Party to enforce this Agreement.
SECTION 3.02 Prohibition on Contesting Liens and Obligations. Each Collateral Agent agrees, on behalf of itself and its Related Secured
Parties, that neither such Collateral Agent nor any of its Related Secured Parties will, and each hereby waives any right to, contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding),
the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any other Collateral Agent or any of its Related Secured Parties in all or any part of the Shared Collateral, the enforceability or payment priority
of any of the First Lien Obligations, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any such Collateral Agent or any of its Related Secured Parties to enforce this
Agreement.
SECTION 3.03 Prohibition on Challenging this Agreement. Each Collateral Agent agrees, on behalf of itself and its
Related Secured Parties, that neither such Collateral Agent nor any of its Related Secured Parties will attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this
Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any such Collateral Agent or any of its Related Secured Parties to enforce this Agreement.
SECTION 3.04 Release of Liens. The parties hereto agree and acknowledge that the release of Liens on any Shared Collateral securing
First Lien Obligations of any Class, whether in connection with a sale, transfer or other disposition of such Shared Collateral or otherwise, shall be governed by and subject to the Secured Credit Documents of such Class, and that nothing in this
Agreement shall be deemed to
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amend or affect the terms of the Secured Credit Documents of such Class with respect thereto; provided that if, at any time any Shared Collateral is transferred to a third party or otherwise
disposed of, in each case, in connection with any enforcement by the Controlling Collateral Agent in accordance with the provisions of this Agreement, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in
favor of the other Collateral Agents for the benefit of each Class of Secured Parties upon such Shared Collateral will automatically be released and discharged upon final conclusion of foreclosure proceeding as and when, but only to the extent, such
Liens on the Shared Collateral of the Controlling Collateral Agent are released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01(b) hereof. Each Collateral Agent
agrees, in accordance with the terms of the Secured Credit Documents of such Class, to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the any other
Collateral Agent to evidence and confirm any release of Shared Collateral provided for in this Section 3.04.
ARTICLE IV
Collateral
SECTION 4.01
Bailment for Perfection of Security Interests.
(a) The Possessory Collateral shall be delivered to the Bailee Agent
and by accepting such Possessory Collateral such Bailee Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or
bailees) as gratuitous bailee for the benefit of each other Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Security Documents, in
each case, subject to the terms and conditions of this Section 4.01.
(b) The Bailee Agent shall (at the sole cost and
expense of the Grantors), upon the Discharge of the First Lien Obligations with respect to which such Collateral Agent is the Collateral Agent, transfer the possession and control of the Possessory Collateral, together with any necessary
endorsements but without recourse or warranty, to the successor Bailee Agent. In connection with any transfer under the foregoing sentence by any Collateral Agent, such transferor Collateral Agent agrees to take all actions in its power as shall be
necessary or reasonably requested by the transferee Collateral Agent to permit the transferee Collateral Agent to obtain, for the benefit of its Related Secured Parties, a first priority security interest in the applicable Possessory Collateral. The
Borrowers and the other Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify each Collateral Agent for loss or damage suffered by such Collateral Agent as a result of such
transfer, except for loss or damage suffered by such Collateral Agent as a result of its own willful misconduct or gross negligence, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(c) Each Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its
possession, as gratuitous bailee for the benefit of each other Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Security Documents,
in each case, subject to the terms and conditions of this Section 4.01.
(d) The duties or responsibilities of each
Collateral Agent under this Section 4.01 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other Secured Party for purposes of perfecting the Lien held by
such Secured Parties thereon.
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SECTION 4.02 Delivery of Documents. Promptly after the execution and delivery to any
Collateral Agent by any Grantor of any Security Document (other than (a) any Security Document in effect on the date hereof and (b) any Additional First Lien Obligations Document referred to in paragraph (b) of Article IX, but
including any amendment, amendment and restatement, waiver or other modification of any such Security Document or Additional First Lien Obligations Document), the Parent Borrower shall deliver to each Collateral Agent party hereto at such time a
copy of such Security Document.
ARTICLE V
Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings
SECTION 5.01 Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any Insolvency or Liquidation
Proceeding against any Borrower or any other Grantor, and the parties hereto acknowledge that this Agreement is intended to be and shall be enforceable as a “subordination” agreement under Bankruptcy Code Section 510(a) or
any equivalent provision of any other Bankruptcy Law. All references herein to any Grantor shall apply to any trustee for such Person and such Person as a debtor-in-possession.
(b) If any Borrower and/or any other Grantor shall become subject to a case (a “Bankruptcy Case”) under the
Bankruptcy Code or other applicable Bankruptcy Law, the following provisions shall apply with respect to any debtor-in-possession financing (“DIP Financing”) to be provided by one or more lenders (the “DIP
Lenders”) under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law and any use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other
Bankruptcy Law:
(i) each Secured Party must be offered the right to participate ratably (based on the proportion that the
outstanding principal amount of First Lien Obligations held by such Secured Party bears to the aggregate outstanding principal amount of all First Lien Obligations) in any DIP Financing on the same terms (including economics and adequate protection)
and conditions as any DIP Lender, other than reasonable and customary bona fide backstop fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such DIP Financing;
(ii) the Parent Borrower shall provide notice of such DIP Financing to each Collateral Agent at least five business days before
entry into such DIP Financing, which notice shall include a reasonably detailed summary of such DIP Financing;
(iii) no
First Lien Obligations may be “rolled up” into or refinanced with any DIP Financing on a greater than 1:1 basis (measured by the ratio of the aggregate principal amount of First Lien Obligations being rolled up or refinanced to the
aggregate principal amount of new money being provided in connection with such DIP Financing) without the consent of the Required Secured Parties of each Class of First Lien Obligations then outstanding;
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(iv) except as otherwise provided in this Section 5.01(b), any
provision of any DIP Financing that provides adverse and different treatment with respect to any Class of First Lien Obligations compared to any other Class of First Lien Obligations (or otherwise in an adverse manner that is inconsistent with this
Agreement) shall require the consent of the Required Secured Parties of such adversely and differently treated Class;
(v)
each of the Collateral Agents (other than, in each case, the Collateral Agent that is the Controlling Collateral Agent) agrees (on behalf of itself and its Related Secured Parties) that it will raise no objection to any DIP Financing or to the Liens
on the Shared Collateral securing the same (“DIP Financing Liens”) unless the Controlling Collateral Agent shall then oppose or object to such DIP Financing and/or such DIP Financing Liens, or such DIP Financing does not otherwise
comply with this Section 5.01(b) (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Collateral Agent agrees
(on behalf of itself and its Related Secured Parties) that it will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any Secured Parties
constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling
Secured Parties, each Non-Controlling Collateral Agent will confirm the priorities with respect to such Shared Collateral as set forth herein); provided, in each case, that (A) the Secured Parties of each Class retain the benefit of their Liens
on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis-à-vis all the other Secured Parties (other than any Liens of the Secured
Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the Secured Parties of each Class are granted Liens on any additional collateral pledged to any Secured Parties as adequate protection or
otherwise in connection with such DIP Financing, with the same priority vis-à-vis the Secured Parties as set forth in this Agreement (other than any Liens of the Secured Parties constituting DIP Financing Liens), (C) except as permitted
by clause (iii) above, if any amount of such DIP Financing is applied to repay any of the First Lien Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any Secured Parties are granted adequate
protection, including in the form of periodic payments, in connection with such DIP Financing, the proceeds of such adequate protection are applied pursuant to Section 2.01 of this Agreement; provided, further, that this Agreement shall not
limit the right of the Secured Parties of each Class to object to the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor of the Secured Parties of such Class or the Collateral Agent with respect thereto that
shall not constitute Shared Collateral; and provided, further, however, that each Collateral Agent agrees (on behalf of itself and its Related Secured Parties) not to object to any other Secured Party receiving adequate protection comparable to any
adequate protection granted to such Secured Parties in connection with a DIP Financing permitted by this paragraph; and
(vi) in respect of the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any
other Bankruptcy Law, to the extent that such cash collateral constitutes Shared Collateral (for the avoidance of doubt, other than the cash proceeds of any DIP Financing or any post-petition cash receipts, which shall be subject to the preceding
clauses of this Section 5.01(b), mutatis mutandis), shall be subject to the consent of the Required Secured Parties of each Class of First Lien Obligations then outstanding.
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ARTICLE VI
The Controlling Collateral Agent
SECTION 6.01 The Controlling Collateral Agent
(a) Each of the Secured Parties hereby irrevocably appoints and authorizes the Controlling Collateral Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Controlling Collateral Agent by the terms hereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Grantors to secure
any of the First Lien Obligations, together with such powers and discretion as are reasonably incidental thereto. Each of Secured Parties hereby agrees to provide such cooperation and assistance as may be reasonably requested by the Controlling
Collateral Agent to facilitate and effect actions taken or intended to be taken by the Controlling Collateral Agent pursuant to this Article VI, such cooperation to include execution and delivery of notices, instruments and other documents as are
reasonably deemed necessary by the Controlling Collateral Agent to effect such actions, and joining in any action, motion or proceeding initiated by the Controlling Collateral Agent for such purposes. Notwithstanding any other provision of this
Agreement, nothing herein shall be construed to impose any fiduciary or other duty on any Controlling Collateral Agent to any Non-Controlling Secured Party or give any Non-Controlling Secured Party the right to direct any Controlling Collateral
Agent, except that each Controlling Collateral Agent shall be obligated to distribute proceeds of any Shared Collateral in accordance with Section 2.01(b) hereof.
(b) In furtherance of the foregoing, each Non-Controlling Secured Party acknowledges and agrees that the Controlling Collateral
Agent shall be entitled, for the benefit of the Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the Security Documents, as applicable, pursuant to which the Controlling
Collateral Agent is the collateral agent for such Shared Collateral, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled as a result of the First Lien Obligations held by such Non-Controlling Secured
Parties. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Controlling Collateral Agent or any other Controlling Secured Party shall have any duty or obligation first to marshal or realize upon any type of
Shared Collateral (or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Obligations), in any
manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the
Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Except with respect to any actions expressly prohibited or required to be taken by this Agreement, each Class of Secured Parties waives any claim it may now or
hereafter have against any Collateral Agent or any other Secured Party of any other Class arising out of (i) any actions which any Collateral Agent or Secured Party takes or omits to take (including, actions with respect to the creation,
perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all
or any part of the First Lien Obligations from any account debtor, guarantor or any other party) in accordance with the Security Documents or any other agreement related thereto or to the collection of the First Lien Obligations or the valuation,
use, protection or release of any security for the First Lien Obligations, (ii) any election by any Collateral Agent or any holders of First Lien Obligations, in any Insolvency or Liquidation Proceeding of the application of
Section 1111(b) of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law or (iii) subject to Section 5.01, any borrowing
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by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, by the Parent
Borrower or any of its Subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Controlling Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of any First Lien
Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Collateral Agent representing holders of First Lien Obligations for whom such Collateral constitutes Shared Collateral.
(c) Without limiting Section 6.01(a) above, upon request of the Parent Borrower or any Collateral Agent from time to time,
in order to ascertain the Controlling Class or directions of the Required Secured Parties of each Class that remains outstanding, as applicable, at any such time, each Agent/Trustee shall certify (and each applicable Secured Party undertakes to
direct the applicable Agent/Trustee to certify) to the Parent Borrower and each Collateral Agent (and the Parent Borrower and each Collateral Agent shall be entitled to conclusively rely on any such certification):
(i) the Credit Participations of First Lien Obligations of its Related Secured Parties (which shall be calculated at the time
stipulated in such request); and
(ii) if applicable, (x) the details of the extent to which the Credit Participations
of its Related Secured Parties have been voted for or against any matter specified in such request and (y) whether the Required Secured Parties of its Class have voted for or against any matter specified in such request.
(d) For the purpose of ascertaining any relevant amount or percentage of Credit Participations, the Agents/Trustees shall
notionally convert the Credit Participations into the Common Currency at the rate for conversion into the Common Currency specified in the relevant Secured Credit Document.
(e) The Controlling Collateral Agent shall not have any duties or obligations to any Non-Controlling Secured Party except those
expressly set forth herein. Without limiting the generality of the foregoing, the Controlling Collateral Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights
and powers expressly contemplated hereby; provided that the Controlling Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Controlling Collateral Agent to liability or that is
contrary to this Agreement or applicable law;
(iii) shall not, except as expressly set forth herein, have any duty to
disclose, and shall not be liable for the failure to disclose, any information relating to a Grantor or any of its Affiliates that is communicated to or obtained by the Person serving as the Controlling Collateral Agent or any of its Affiliates in
any capacity;
(iv) shall not, except as expressly set forth herein, be liable for any action taken or not taken by it
(1) in the absence of its own gross negligence or willful misconduct (as determined by a final non-appealable order of a court of competent jurisdiction) or (2) in reliance on a certificate from the Parent Borrower stating that such action
is permitted by the terms of this Agreement. The Controlling Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Class of First Lien Obligations unless and until notice describing such Event of Default and
referencing the applicable Secured Credit Documents is given to the Controlling Collateral Agent;
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(v) shall not be responsible for or have any duty to ascertain or inquire
into (1) any statement, warranty or representation made in or in connection with this Agreement or any other Secured Credit Document, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (3) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (4) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents,
(5) the value or the sufficiency of any Collateral for any Class of First Lien Obligations, or (6) the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required to be
delivered to the Controlling Collateral Agent; and
(vi) need not segregate money held hereunder from other funds except to
the extent required by law and shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing.
ARTICLE VII
Other
Agreements
SECTION 7.01 Concerning Secured Credit Documents and Collateral.
(a) The Secured Credit Documents of any Class may be Amended, in whole or in part, in accordance with their terms, in each case
without notice to or the consent of the Collateral Agent or any Secured Parties of any other Class; provided that nothing in this paragraph shall affect any limitation on any such Amendment that is set forth in the Secured Credit Documents of any
such other Class.
(b) The Grantors agree that they shall not grant to any Person any Lien on any Shared Collateral
securing First Lien Obligations of any Class other than through the Collateral Agent of such Class (it being understood that the foregoing shall not be deemed to prohibit grants of set-off rights to Secured Parties of any Class).
(c) The Grantors agree that they shall not, and shall not permit any Subsidiary to, grant or permit or suffer to exist any
additional Liens (unless otherwise permitted under each Secured Credit Document) on any asset or property to secure any Class of First Lien Obligations unless it has granted a Lien on such asset or property to secure each other Class of First Lien
Obligations; provided, that to the extent the foregoing is not complied with for any reason, without limiting any other rights and remedies available to the Secured Parties of any Class, each such Secured Party agrees that any amounts received by or
distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 7.01(c) shall be subject to Article II.
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SECTION 7.02 Refinancings. The First Lien Obligations of any Class may be increased
or Refinanced (including, for the avoidance of doubt, any additional Indebtedness incurred to pay premiums (including tender premiums), defeasance costs, and accrued interest, fees and expenses in connection with such Refinancing), in whole or in
part, in each case, without notice to, or the consent of the Collateral Agent or any Secured Party of any other Class, all without affecting the priorities provided for herein or the other provisions hereof, so long as permitted by the terms of each
Secured Credit Document; provided, that if any obligations of the Grantors in respect of such Refinancing indebtedness shall be secured by Liens on any Shared Collateral, such obligations and the holders thereof shall be subject to and bound by the
provisions of this Agreement and, if not already, the collateral agent under such obligations shall become a party hereto by executing and delivering a Collateral Agent Joinder Agreement.
SECTION 7.03 Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise, all or part of any payment with respect to
the First Lien Obligations of any Class previously made shall be avoided or rescinded for any reason whatsoever (including an order or judgment for disgorgement of a preference, fraudulent transfer or other avoidance action under the Bankruptcy
Code, other applicable Bankruptcy Law, or any similar law), then the terms and conditions of this Agreement shall be fully applicable thereto until all the First Lien Obligations of such Class shall again have been satisfied in full.
SECTION 7.04 Reorganization Modifications. In the event the First Lien Obligations of any Class are modified pursuant to applicable
law, including Section 1129 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, any reference to the First Lien Obligations of such Class or the Secured Credit Documents of such Class shall refer to such obligations
or such documents as so modified.
SECTION 7.05 Further Assurances. Each of the Collateral Agents and the Grantors agrees that it
will execute, or will cause to be executed, such reasonable further documents, agreements and instruments, and take all such reasonable further actions, as may be required under any applicable law, or which any Collateral Agent may reasonably
request, to effectuate the terms of this Agreement.
SECTION 7.06 Purchase Right. Following (a) the acceleration of all First
Lien Obligations in accordance with the terms of the Secured Credit Documents or (b) the commencement of an Insolvency or Liquidation Proceeding (each, a “Purchase Event”), the applicable Purchasing Secured Parties in respect
of such Purchase Event shall have the right to purchase, upon written notice to the applicable Selling Secured Parties, solely for so long as such Class of Secured Parties constitute the Purchasing Secured Parties, and the Secured Parties, of the
other Classes (the “Selling Secured Parties”) hereby offer the applicable Purchasing Secured Parties the option, to purchase all, but not less than all, of the aggregate amount of outstanding First Lien Obligations of the Selling
Secured Parties outstanding at the time of purchase at par, plus any premium, if any, that would be applicable upon prepayment of such First Lien Obligations and accrued and unpaid interest, fees, and expenses, without warranty or representation or
recourse (except for representations and warranties required to be made by assigning lenders or noteholders pursuant to any Secured Credit Document); provided that no Secured Party shall have an obligation to participate in the making of such
an offer to purchase the outstanding First Lien Obligations of the Selling Secured Parties. If such right is exercised, the parties shall endeavor to close promptly thereafter but in any event within ten (10) Business Days of the request. If
one or more of the Secured Parties exercise such purchase right, it shall be exercised pursuant to documentation mutually acceptable to the applicable Purchasing Secured Parties, Selling Secured Parties and Collateral Agents. If none of the
Purchasing Secured Parties exercise such right prior to the Purchase Event Expiration Date in respect of such Purchase Event, the Secured Parties shall have no further obligations pursuant to this Section 7.06 for such Purchase Event and may
take any further actions in their sole discretion in accordance with the Secured Credit Documents and this Agreement.
22
ARTICLE VIII
No Reliance; No Liability
SECTION 8.01 No Reliance; Information. Each Collateral Agent, on behalf of its Related Secured Parties, acknowledges that (a) its
Related Secured Parties have, independently and without reliance upon any Collateral Agent or any Related Secured Parties, and based on such documents and information as they have deemed appropriate, made their own credit analysis and decision to
enter into the Secured Credit Documents to which they are party and (b) its Related Secured Parties will, independently and without reliance upon any Collateral Agent or any of its Related Secured Parties, and based on such documents and
information as they shall from time to time deem appropriate, continue to make their own credit decision in taking or not taking any action under this Agreement or any other Secured Credit Document. The Collateral Agent or Secured Parties of any
Class shall have no duty to disclose to any Collateral Agent or any Secured Party of any other Class any information relating to any Borrower or any of the Grantors or their Subsidiaries, or any other circumstance bearing upon the risk of nonpayment
of any of the First Lien Obligations, that is known or becomes known to any of them or any of their Affiliates. If the Collateral Agent or any Secured Party of any Class, in its sole discretion, undertakes at any time or from time to time to provide
any such information to, as the case may be, the Collateral Agent or any Secured Party of any other Class, it shall be under no obligation (i) to make, and shall not be deemed to have made, any express or implied representation or warranty,
including with respect to the accuracy, completeness, truthfulness or validity of the information so provided, (ii) to provide any additional information or to provide any such information on any subsequent occasion or (iii) to undertake
any investigation.
SECTION 8.02 No Warranties or Liability.
(a) Each Collateral Agent, for itself and on behalf of its Related Secured Parties, acknowledges and agrees that no Collateral
Agent or Secured Party of any other Class has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Secured Credit Documents,
the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The Collateral Agent and the Secured Parties of any Class will be entitled to manage and supervise their loans and other extensions of credit in the manner
set forth in their Related Secured Credit Documents. No Collateral Agent of any Class shall, by reason of this Agreement, any other Security Document or any other document, have a fiduciary relationship or other implied duties in respect of any
other Collateral Agent or any other Secured Party.
(b) No Collateral Agent or Secured Parties of any Class shall have any
express or implied duty to the Collateral Agent or any Secured Party of any other Class to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of a Default or an Event of Default under any Secured Credit
Document (other than, in each case, this Agreement), regardless of any knowledge thereof that they may have or be charged with.
SECTION
8.03 Rights of Collateral Agents. Notwithstanding anything contained herein to the contrary, each of (a) the RCF Collateral Agent shall be entitled to the same rights, protections, immunities and indemnities as set forth in the RCF
Credit Agreement, (b) the TLB Collateral Agent shall be entitled to the same rights, protections, immunities and indemnities as set forth in the TLB Credit Agreement and (c) the First Lien Notes Collateral Agent is entering into this
Agreement in its capacity as Notes Collateral Agent under the First Lien Notes Indenture and shall be entitled to the same rights, protections, immunities and indemnities as set forth in the First Lien Notes Indenture, in each case, as if the
provisions setting forth those rights, protections, immunities and indemnities are fully set forth herein.
23
ARTICLE IX
Additional First Lien Obligations
The Borrowers and the other Grantors may from time to time, subject to any limitations contained in any Secured Credit Documents in effect at
such time, incur and designate additional indebtedness and related obligations that are, or are to be, secured by Liens on any assets of the Borrowers or any of the other Grantors that would, if such Liens were granted, constitute Shared Collateral
as Additional First Lien Obligations by delivering to each Collateral Agent party hereto at such time a certificate of an Authorized Officer of the Parent Borrower:
(a) describing the indebtedness and other obligations being designated as Additional First Lien Obligations, and including a
statement of the maximum aggregate outstanding principal amount of such indebtedness as of the date of such certificate;
(b) setting forth a summary of the Additional First Lien Obligations Documents under which such Additional First Lien
Obligations are or will be issued or incurred or the guarantees of or Liens securing such Additional First Lien Obligations are, or are to be, granted or created, and attaching copies of such Additional First Lien Obligations Documents as each
Grantor has executed and delivered to the Person that serves as the collateral agent, collateral trustee or a similar representative for the holders of such Additional First Lien Obligations (such Person being referred to as the “Additional
Collateral Agent”) with respect to such Additional First Lien Obligations on the closing date of such Additional First Lien Obligations, certified as being true and complete in all material respects by an Authorized Officer of the Parent
Borrower;
(c) identifying the Person that serves as the Additional Collateral Agent;
(d) certifying that the incurrence of such Additional First Lien Obligations, the creation of the Liens securing such
Additional First Lien Obligations and the designation of such Additional First Lien Obligations as “Additional First Lien Obligations” hereunder do not or will not violate or result in a Default under any provision of any Secured
Credit Document of any Class in effect at such time;
(e) certifying that the Additional First Lien Obligations Documents
authorize the Additional Collateral Agent to become a party hereto by executing and delivering a Collateral Agent Joinder Agreement and provide that, upon such execution and delivery, such Additional First Lien Obligations and the holders thereof
shall become subject to and bound by the provisions of this Agreement; and
(f) attaching a fully completed Collateral
Agent Joinder Agreement executed and delivered by the Additional Collateral Agent.
Upon the delivery of such certificate and the related attachments as
provided above and as so long as the statements made therein are true and correct as of the date of such certificate, the obligations designated in such notice shall become Additional First Lien Obligations for all purposes of this Agreement.
Notwithstanding anything herein contained to the contrary, each Collateral Agent may conclusively rely on such certificate delivered by the Parent Borrower, and upon its receipt of such certificate, each Collateral Agent shall execute the Collateral
Agent Joinder Agreement evidencing its acknowledgment thereof, and shall incur no liability to any Person for such execution.
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ARTICLE X
Miscellaneous
SECTION
10.01 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:
(a) if to the Borrowers or any Grantor, to the Parent Borrower, at its address at:
Accendra Health, Inc.
435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Jonathan A. Leon, Executive Vice President & Chief Financial Officer; Heath
H. Galloway, Executive Vice President, General Counsel & Corporate Secretary
Email: [***]
and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Thomas J. Dobleman, P.C.
Email: thomas.dobleman@kirkland.com
and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Paul L. Sandler, P.C.
Email: paul.sandler@kirkland.com
(b) if to the RCF Collateral Agent, to it at:
Bank of America, N.A.
Agency Management
4500 Amon Carter Blvd.
Mail Code: TX2-979-02-22
Fort Worth, TX 76155
Attention: Jennifer Toney, Katie Pounds and Darren Merten
Telephone: (469) 201-9415
Facsimile: (214) 209-9581
Email: jennifer.toney@bofa.com; kathryn.pounds@bofa.com; darren.merten@bofa.com
(c) if to the TLB Collateral Agent, to it at:
JPMorgan Chase Bank, N.A.
WLS - Document Workflow Management
10 South Dearborn Street - Floor L2
Mail Code IL1-1190
Chicago, IL 60603
25
(d) if to the First Lien Notes Collateral Agent, to it at:
Regions Bank
1180 West Peachtree Street NW, Suite 1400
Atlanta, GA 30309
Attention: Corporate Trust Department
(e) if to any Additional Collateral Agent, to it at the address set forth in the applicable Collateral Agent Joinder Agreement.
Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases)
if delivered by hand or overnight courier service or sent by facsimile or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided
in this Section 10.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 10.01. As agreed to in writing by any party hereto from time to time, notices and other communications to such
party may also be delivered by e-mail to the e-mail address of a representative of such party provided from time to time by such party.
SECTION 10.02 Waivers; Amendment; Joinder Agreements.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this Section 10.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any
party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or otherwise modified except as contemplated by the
Secured Credit Documents and then pursuant to an agreement or agreements in writing entered into by each Collateral Agent then party hereto and the Parent Borrower; provided that without any action or consent of any Collateral Agent
(i) (A) this Agreement may be supplemented by a Collateral Agent Joinder Agreement, and an Additional Collateral Agent may become a party hereto, in accordance with Article IX and (B) this Agreement may be supplemented by a
Grantor Joinder Agreement, and a Subsidiary may become a party hereto, in accordance with Section 10.12, (ii) in connection with any Refinancing of First Lien Obligations of any Class, the Collateral Agents then party hereto shall enter
(and are hereby authorized to enter without the consent of any other Secured Party), at the request of any Collateral Agent or the Parent Borrower, into such amendments or modifications of this Agreement as are reasonably necessary to reflect such
Refinancing; provided that such Collateral Agent shall not be required to enter into such amendments or modifications unless it shall have received a certificate of an Authorized Officer of the Parent Borrower certifying that such Refinancing is
permitted
26
hereunder and (iii) the Parent Borrower may amend this Agreement to reflect any technical changes to Section 7.06 and its component definitions that are necessary or appropriate to give
effect to the designation of any Additional First Lien Obligations hereunder in a manner consistent with the definition of “Purchasing Secured Parties” as in effect as of the date hereof.
SECTION 10.03 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto (and their
Related Secured Parties) and their respective successors and assigns. No other Person shall have or be entitled to assert rights or benefits hereunder.
SECTION 10.04 Effectiveness; Survival. This Agreement shall become effective when executed and delivered by the parties hereto. All
covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 10.05 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which
when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or other electronic communication (including “.pdf” or “.tif” files)
shall be as effective as delivery of a manually signed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of similar import in this Agreement or any notice,
certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as
manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic
Signatures and Records Act of 1999, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 10.06
Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.07 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Each party hereto irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of
the Supreme Court of the State of New York sitting in the Borough of Manhattan, New York County and of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto or any Secured Party may otherwise have to bring any action or proceeding relating
to this Agreement against any party hereto or its properties in the courts of any jurisdiction.
27
(c) Each party hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of
this Section 10.07. Each party hereto irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.01, such
service to be effective upon receipt. Nothing in this Agreement will affect the right of any party hereto or any Secured Party to serve process in any other manner permitted by law.
SECTION 10.08 WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.09 Headings.
Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 10.10 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of
any other Secured Credit Documents, the provisions of this Agreement shall control.
SECTION 10.11 Provisions Solely to Define Relative
Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Secured Parties, the Borrowers and the Grantors in relation to one another. Nothing in this Agreement is intended to or
shall impair the obligations of any Borrower or any other Grantor, which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due and payable in accordance with their terms. For the avoidance of doubt,
nothing contained herein shall be construed to constitute a waiver or an amendment of any covenant of any Borrower or any other Grantor contained in any Secured Credit Document, which restricts the incurrence of any Indebtedness or the grant of any
Lien.
SECTION 10.12 Additional Grantors. In the event any Subsidiary shall have granted a Lien on any of its assets to secure any
First Lien Obligations, the Parent Borrower shall cause such Subsidiary, if not already a party hereto, to become a party hereto as a “Grantor”. Upon the execution and delivery by any Subsidiary of a Grantor Joinder Agreement, any
such Subsidiary shall become a party hereto and a Grantor hereunder with the same force and effect as if originally named as such herein. The execution and delivery of any such instrument shall not require the consent of any other party hereto. The
rights and obligations of each party hereto shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
28
SECTION 10.13 Specific Performance . Each Collateral Agent of any Class, on behalf of
itself and its Related Secured Parties, may demand specific performance of this Agreement. Each Collateral Agent of any Class, on behalf of itself and its Related Secured Parties, hereby irrevocably waives any defense based on the adequacy of a
remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action which may be brought by the Secured Parties.
SECTION 10.14 Amendment and Restatement. This Agreement amends and restated the Existing Intercreditor Agreement in its entirety and on
and from the date hereof, the Existing Intercreditor Agreement shall be read and construed for all purposes as set out in this Agreement.
SECTION 10.15 Integration. This Agreement, together with the other Secured Credit Documents, represents the agreement of each of the
Grantors and the Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, any Collateral Agent or any other Secured Party relative to the subject matter hereof
not expressly set forth or referred to herein or in the other Secured Credit Documents.
[SIGNATURE PAGE FOLLOWS]
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
BANK OF AMERICA, N.A.,
in its capacity as RCF Collateral Agent
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
in its capacity as TLB Collateral Agent
By:
Name:
Title:
REGIONS BANK,
in its
capacity as First Lien Notes Collateral Agent
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
ACCENDRA HEALTH, INC.,
as the Parent Borrower
By:
Name: Heath H. Galloway
Title: Executive Vice President
APRIA, INC.,
BARISTA
ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC,
each as a Borrower
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name: Michelle Knowles
Title: Secretary
[Signature Page to
Amended and Restated First Lien Pari Passu Intercreditor Agreement]
O&M BYRAM HOLDINGS, GP, as a Grantor
By:
Barista Acquisition I, LLC; and
Barista Acquisition II, LLC
Its:
Partners
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HOLDINGS I, INC., as a Grantor
By:
Name: Michelle Knowles
Title: Secretary
APRIA HOLDCO LLC,
APRIA HEALTHCARE GROUP LLC,
APRIA HEALTHCARE LLC,
CPAP SLEEP STORE LLC,
HEALTHY LIVING HOME MEDICAL LLC,
LOFTA, each as a Grantor
By:
Name: Heath H. Galloway
Title: Executive Vice President
[Signature Page to
Amended and Restated First Lien Pari Passu Intercreditor Agreement]
EXHIBIT I
[FORM OF] COLLATERAL AGENT JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] (this
“Joinder Agreement”) to the AMENDED AND RESTATED FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of [•], 2026 (the “Intercreditor Agreement”), BANK OF AMERICA, N.A., as the RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A., as the TLB Collateral Agent, REGIONS BANK, as the First Lien Notes Collateral Agent, and each Additional Collateral Agent from time to time party thereto and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia
corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista
II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with the Parent Borrower, Barista I, Barista II and Apria, the
“Borrowers”), and the other Grantors party thereto.
A.
Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms
in the Intercreditor Agreement.
B.
The Borrowers proposes to issue or incur Additional First Lien Obligations and the Person identified in the
signature pages hereto as the “Additional Collateral Agent” (the “Additional Collateral Agent”) will serve as the collateral agent, collateral trustee or a similar representative for the Additional Secured
Parties. The Additional First Lien Obligations are being designated as such by the Borrowers in accordance with Article IX of the Intercreditor Agreement.
C.
The Additional Collateral Agent wishes to become a party to the Intercreditor Agreement and to acquire and
undertake, for itself and on behalf of the Additional Secured Parties, the rights and obligations of an “Additional Collateral Agent” thereunder. The Additional Collateral Agent is entering into this Joinder Agreement in
accordance with the provisions of the Intercreditor Agreement in order to become an Additional Collateral Agent thereunder.
Accordingly, the Additional Collateral Agent and the Borrowers agree as follows, for the benefit of the Additional Collateral Agent, the
Borrowers and each other party to the Intercreditor Agreement:
SECTION 1 Accession to the Intercreditor Agreement. The Additional
Collateral Agent (a) hereby accedes and becomes a party to the Intercreditor Agreement as an Additional Collateral Agent for the Additional Secured Parties from time to time in respect of the Additional First Lien Obligations, (b) agrees,
for itself and on behalf of the Additional Secured Parties from time to time in respect of the Additional First Lien Obligations, to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations
of an Additional Collateral Agent under the Intercreditor Agreement.
SECTION 2 Counterparts. This Joinder Agreement may be
executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. This Joinder Agreement shall become effective when each Collateral Agent shall have received a counterpart
of this Joinder Agreement that bears the signature of the Additional Collateral Agent. Delivery of an executed signature page to this Joinder Agreement by facsimile transmission or other electronic communication (including “.pdf”
or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Joinder Agreement. The words “execution,” “signed,” “signature,” and words of similar import in this Joinder
Agreement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity
and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000,
the Electronic Signatures and Records Act of 1999, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 3 Benefit of Agreement. The agreements set forth herein or undertaken
pursuant hereto are for the benefit of, and may be enforced by, any party to the Intercreditor Agreement.
SECTION 4 Governing Law.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5
Severability. In case any one or more of the provisions contained in this Joinder Agreement should be held invalid, illegal or unenforceable in any respect, none of the parties hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The
parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 6 Notices. All communications and notices hereunder shall be in writing and given as provided in
Section 10.01 of the Intercreditor Agreement. All communications and notices hereunder to the Additional Collateral Agent shall be given to it at the address set forth under its signature hereto, which information supplements Section 10.01
of the Intercreditor Agreement.
SECTION 7 Expense Reimbursement. The Borrowers agree to reimburse each Collateral Agent for its
reasonable and invoiced out-of-pocket expenses in connection with this Joinder Agreement, including the reasonable and invoiced fees, other charges and disbursements of counsel for each Collateral Agent.
IN WITNESS WHEREOF, the Additional Collateral Agent has duly executed this Joinder Agreement
to the Intercreditor Agreement as of the day and year first above written.
[NAME OF ADDITIONAL COLLATERAL AGENT],
as ADDITIONAL COLLATERAL AGENT for the
ADDITIONAL SECURED
PARTIES
By:
Name:
Title:
Address for notices:
attention of:
Telecopy:
ACKNOWLEDGED BY:
ACCENDRA HEALTH, INC., as the Parent Borrower
By:
Name:
Title:
APRIA, INC., as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC, as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC, as a Borrower
By:
Name:
Title:
BYRAM HEALTHCARE CENTERS, INC., as a Borrower
By:
Name:
Title:
O&M BYRAM HOLDINGS, GP, as a Grantor
By:
Name:
Title:
BYRAM HOLDINGS I, INC., as a Grantor
By:
Name:
Title:
APRIA HOLDCO LLC, as a Grantor
By:
Name:
Title:
APRIA HEALTHCARE GROUP LLC, as a Grantor
By:
Name:
Title:
APRIA HEALTHCARE LLC, as a Grantor
By:
Name:
Title:
CPAP SLEEP STORE LLC, as a Grantor
By:
Name:
Title:
HEALTHY LIVING HOME MEDICAL LLC, as a Grantor
By:
Name:
Title:
LOFTA, as a Grantor
By:
Name:
Title:
EXHIBIT II
[FORM OF] GRANTOR JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] (this “Grantor
Joinder Agreement”) to the AMENDED AND RESTATED FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT dated as of May [•], 2026 (the “Intercreditor Agreement”), among BANK OF AMERICA, N.A., as the RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A., as the TLB Collateral Agent, REGIONS BANK, as the First Lien Notes Collateral Agent, and each Additional Collateral Agent from time to time party thereto and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia
corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista
II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with the Parent Borrower, Barista I, Barista II and Apria, the
“Borrowers”), and the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings
assigned to such terms in the Intercreditor Agreement.
B. [ ], a Subsidiary of the Parent Borrower (the “Additional
Grantor”), has granted a Lien on all or a portion of its assets to secure First Lien Obligations and such Additional Grantor is not a party to the Intercreditor Agreement.
C. The Additional Grantor wishes to become a party to the Intercreditor Agreement and to acquire and undertake the rights and obligations of a Grantor
thereunder. The Additional Grantor is entering into this Grantor Joinder Agreement in accordance with the provisions of the Intercreditor Agreement in order to become a Grantor thereunder.
D. Accordingly, the Additional Grantor agrees as follows, for the benefit of the Collateral Agents, the Borrowers and each other party to the Intercreditor
Agreement:
SECTION 1 Accession to the Intercreditor Agreement. In accordance with Section 10.12 of the Intercreditor Agreement, the
Additional Grantor (a) hereby accedes and becomes a party to the Intercreditor Agreement as a Grantor with the same force and effect as if originally named therein as a Grantor, (b) agrees to all the terms and provisions of the Intercreditor
Agreement and (c) shall have all the rights and obligations of a Grantor under the Intercreditor Agreement.
SECTION 2 Representations,
Warranties and Acknowledgement of the Additional Grantor. The Additional Grantor represents and warrants to each Collateral Agent and each Secured Party that this Grantor Joinder Agreement has been duly authorized, executed and delivered by such
Additional Grantor and constitutes the legal, valid and binding obligation, enforceable against it 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.
SECTION 3
Counterparts. This Grantor Joinder Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. This Grantor Joinder Agreement shall become
effective when each Collateral Agent shall have received a counterpart of this Grantor Joinder Agreement that bears the signature of the Additional Grantor. Delivery of an executed signature page to this Grantor Joinder Agreement by facsimile
transmission or other electronic communication (including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Grantor Joinder Agreement. The words
“execution,” “signed,” “signature,” and words of similar import in this Grantor Joinder Agreement or any notice, certificate,’
document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same
effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National
Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 4 Benefit of Agreement. The agreements set forth herein or undertaken pursuant hereto are for the benefit of, and may be
enforced by, any party to the Intercreditor Agreement.
SECTION 5 Governing Law. THIS GRANTOR JOINDER AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6 Severability. In case any one or
more of the provisions contained in this Grantor Joinder Agreement should be held invalid, illegal or unenforceable in any respect, none of the parties hereto shall be required to comply with such provision for so long as such provision is held to
be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7 Notices. All communications and notices hereunder shall be in writing and given as provided in Section 10.01 of the
Intercreditor Agreement.
SECTION 8 Expense Reimbursement. The Additional Grantor agrees to reimburse each Collateral Agent for its
reasonable and invoiced out-of-pocket expenses in connection with this Grantor Joinder Agreement, including the reasonable and invoiced fees, other charges and disbursements of counsel for each Collateral Agent.
IN WITNESS WHEREOF, the Additional Grantor has duly executed this Grantor Joinder Agreement
to the Intercreditor Agreement as of the day and year first above written.
[NAME OF SUBSIDIARY]
By:
Name:
Title:
Acknowledged by:
BANK OF AMERICA, N.A.,
as RCF
Collateral Agent
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A. ,
as TLB
Collateral Agent
By:
Name:
Title:
REGIONS BANK,
as First Lien Notes
Collateral Agent
By:
Name:
Title:
[EACH OTHER ADDITIONAL COLLATERAL AGENT], as Additional Collateral Agent
By:
Name:
Title:
EXHIBIT F
to Amendment No. 2 to Term Loan Credit Agreement and Consent
Second Lien Intercreditor Agreement
[See attached.]
Execution Version
JUNIOR LIEN INTERCREDITOR AGREEMENT
dated as of June 15, 2026
among
BANK OF AMERICA, N.A.,
as RCF Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as TLB
Collateral Agent,
REGIONS BANK,
as First Lien Notes Collateral Agent,
REGIONS BANK,
as Initial Junior
Lien Collateral Agent,
and
each additional Representative from time to time party hereto,
and acknowledged and agreed by
ACCENDRA HEALTH, INC.,
as the
Parent Borrower,
BARISTA ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC
APRIA,
INC.,
and
BYRAM HEALTHCARE
CENTERS, INC.,
as Borrowers
and
the other Grantors from time
to time party hereto
JUNIOR LIEN INTERCREDITOR AGREEMENT dated as of June 15, 2026 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among BANK OF AMERICA, N.A., in its capacity, together with its successors in such capacity, as RCF Collateral Agent
(as defined below) under the RCF Credit Agreement (as defined below), JPMORGAN CHASE BANK, N.A., in its capacity, together with its successors in such capacity, as the TLB Collateral Agent (as defined below) under the TLB Credit Agreement (as
defined below), REGIONS BANK, in its capacity, together with its successors in such capacity, as the First Lien Notes Collateral Agent (as defined below) under the First Lien Notes Indenture (as defined below), REGIONS BANK, in its
capacity, together with its successors in such capacity, as the Initial Junior Lien Collateral Agent (as defined below) under the Initial Junior Lien Agreement (as defined below), and each additional Junior Priority Representative and Senior
Representative that from time to time becomes a party hereto pursuant to Section 8.09, and acknowledged and agreed by ACCENDRA HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I,
LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company (“Barista II”), APRIA, INC., a Delaware corporation
(“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and Apria, the “Borrowers”), and the other
Grantors (as defined below) party hereto.
In consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the RCF Collateral Agent (for itself and on behalf of the RCF Secured Parties), the TLB Collateral Agent (for itself and on behalf of the TLB Secured Parties), the First
Lien Notes Collateral Agent (for itself and on behalf of the First Lien Notes Secured Parties), the Initial Junior Lien Collateral Agent (for itself and on behalf of the Initial Junior Lien Secured Parties), each additional Senior Representative
(for itself and on behalf of the Additional Senior Debt Parties under the applicable Additional Senior Debt Facility) and each additional Junior Priority Representative (for itself and on behalf of the Junior Priority Debt Parties under the
applicable Junior Priority Debt Facility) agree as follows:
ARTICLE I
Definitions
SECTION 1.01.
Certain Defined Terms. Capitalized terms used but not otherwise defined herein, if defined in the New York UCC, have the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below.
“Additional Junior Priority Debt” means any Indebtedness that is issued or guaranteed by the Borrowers and/or any other
Grantor (other than Indebtedness constituting Initial Junior Lien Obligations), which Indebtedness and guarantees are secured by the Junior Priority Collateral (or any portion thereof) on a pari passu or junior basis (but without
regard to control of remedies, other than as provided by the terms of the applicable Additional Junior Priority Debt Documents) with the Initial Junior Lien Obligations and any other Junior Priority Debt Obligations and which the applicable
Additional Junior Priority Debt Documents provide that such Indebtedness and guarantees are to be secured by such Junior Priority Collateral on a subordinate basis to the Senior Obligations; provided, however, that (i) such
Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each then extant Senior Debt Document and Junior Priority Debt Document in effect at the time of such incurrence, security grant or guarantee and (ii) the
Representative for the holders of such Indebtedness shall have (A) executed and
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delivered this Agreement as of the date hereof or become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.09 hereof and (B) become a party
to an Applicable Intercreditor Agreement (if relevant). Additional Junior Priority Debt shall include any Registered Equivalent Notes and guarantees thereof by the Guarantors issued in exchange therefor.
“Additional Junior Priority Debt Documents” means, with respect to any series, issue or class of Additional Junior Priority
Debt, the promissory notes, loan agreements, indentures, the Junior Priority Collateral Documents or other operative agreements evidencing or governing such Indebtedness.
“Additional Junior Priority Debt Facility” means each indenture, loan agreement or other governing agreement with respect
to any Additional Junior Priority Debt.
“Additional Junior Priority Debt Obligations” means, with respect to any
series, issue or class of Additional Junior Priority Debt, all amounts owing pursuant to the terms of such Additional Junior Priority Debt, including, without limitation, the obligation (including guarantee obligations) to pay principal, interest,
fees, expenses (including interest, fees, and expenses that accrue after the commencement of a Bankruptcy Case, regardless of whether such interest is an allowed claim under such Bankruptcy Case), letter of credit commissions, reimbursement
obligations, charges, attorneys’ costs, indemnities and other amounts payable by a Grantor under any Additional Junior Priority Debt Document.
“Additional Junior Priority Debt Parties” means, with respect to any series, issue or class of Additional Junior Priority
Debt, the holders of such Indebtedness, the Representative with respect thereto, any trustee or agent therefor under any related Additional Junior Priority Debt Documents and the beneficiaries of each indemnification obligation undertaken by the
Borrowers or any other Grantor under any related Additional Junior Priority Debt Documents.
“Additional Senior Debt”
means any Indebtedness that is issued or guaranteed by the Borrowers and/or any Grantor (other than Indebtedness constituting RCF Obligations, TLB Obligations or First Lien Notes Obligations) which Indebtedness and guarantees are secured by the
Senior Collateral (or a portion thereof) on a basis that is senior to the Initial Junior Lien Obligations (but not senior to the RCF Obligations, TLB Obligations or First Lien Notes Obligations); provided, however, that (i) such
Indebtedness is permitted to be incurred, secured and guaranteed on such basis by each then extant Senior Debt Document and Junior Priority Debt Document in effect at the time of such incurrence, security grant or guarantee and (ii) the
Representative for the holders of such Indebtedness shall have (A) executed and delivered this Agreement as of the date hereof or become party to this Agreement pursuant to, and by satisfying the conditions set forth in, Section 8.09
hereof and (B) become a party to an Applicable Intercreditor Agreement (if relevant). Additional Senior Debt shall include any Registered Equivalent Notes and guarantees thereof by the Guarantors issued in exchange therefor.
“Additional Senior Debt Documents” means, with respect to any series, issue or class of Additional Senior Debt, the
promissory notes, loan agreements, indentures, the Senior Collateral Documents or other operative agreements evidencing or governing such Indebtedness.
“Additional Senior Debt Facility” means each indenture, loan agreement or other governing agreement with respect to any
Additional Senior Debt.
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“Additional Senior Debt Obligations” means, with respect to any series,
issue or class of Additional Senior Debt, all amounts owing pursuant to the terms of such Additional Senior Debt, including, without limitation, the obligation (including guarantee obligations) to pay principal, interest, fees, expenses (including
interest, fees, and expenses that accrue after the commencement of a Bankruptcy Case, regardless of whether such interest, fees, or expenses is an allowed claim under such Bankruptcy Case), letter of credit commissions, reimbursement obligations,
charges, attorneys’ costs, indemnities and other amounts payable by a Grantor under any Additional Senior Debt Document.
“Additional Senior Debt Parties” means, with respect to any series, issue or class of Additional Senior Debt, the holders
of such Indebtedness, the Representative with respect thereto, any trustee or agent therefor under any related Additional Senior Debt Documents and the beneficiaries of each indemnification obligation undertaken by the Borrowers or any Grantor under
any related Additional Senior Debt Documents.
“Agreement” has the meaning assigned to such term in the introductory
paragraph of this Agreement.
“Applicable Intercreditor Agreement” means the First Lien Pari Passu Intercreditor
Agreement and/or any other intercreditor agreement entered into in accordance with the terms of the Senior Debt Documents and/or the Junior Priority Debt Documents, as applicable, as the context requires.
“Authorized Officer” means, with respect to any Person, the chief executive officer, the chief financial officer, principal
accounting officer, the president, any vice president, treasurer, general counsel, secretary or another executive officer of such Person.
“Bailee Agent” means the “Bailee Agent” as defined in the First Lien Pari Passu Intercreditor Agreement.
“Bankruptcy Case” means a case under the Bankruptcy Code or any other Bankruptcy Law.
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
“Borrowers” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to remain closed.
“Class Debt” has the meaning assigned to such term in
Section 8.09.
“Class Debt Parties” has the meaning assigned to such term in Section 8.09.
“Class Debt Representatives” has the meaning assigned to such term in Section 8.09.
“Collateral” means the Senior Collateral and the Junior Priority Collateral.
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“Collateral Agents” means the RCF Collateral Agent, the TLB Collateral
Agent, the First Lien Notes Collateral Agent, any collateral agent designated pursuant to any Additional Senior Debt Documents, the Initial Junior Lien Collateral Agent and any collateral agent designated pursuant to any Additional Junior Priority
Debt Documents.
“Collateral Documents” means the Senior Collateral Documents and the Junior Priority Collateral
Documents.
“Debt Facility” means any Senior Facility and any Junior Priority Debt Facility.
“Designated Junior Priority Representative” means (i) the Initial Junior Lien Collateral Agent, until such time as the
Initial Junior Lien Agreement ceases to be the only Junior Priority Debt Facility under this Agreement and (ii) thereafter, the Junior Priority Representative designated from time to time by the Junior Priority Majority Representatives, in a
notice to the Designated Senior Representative and the Borrowers hereunder, as the “Designated Junior Priority Representative” for purposes hereof.
“Designated Senior Representative” means the Controlling Collateral Agent (as defined in the First Lien Pari Passu
Intercreditor Agreement, which, as of the date hereof, is the First Lien Notes Collateral Agent) as identified to the Parent Borrower and the Designated Junior Priority Representative, as applicable.
“DIP Financing” has the meaning assigned to such term in Section 6.01.
“Discharge” means, with respect to any Debt Facility, the date on which such Debt Facility and the Senior Obligations or
Junior Priority Debt Obligations thereunder, as the case may be, are paid in full in cash or other consideration acceptable to the holders thereof (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has
been made), all commitments if any to extend credit are terminated (including letters of credit, the undrawn amount of which constitutes Senior Obligations, which shall be terminated), and no longer secured by Shared Collateral pursuant to the terms
of the documentation governing such Debt Facility. The term “Discharged” shall have a corresponding meaning.
“Discharge of Senior Obligations” means the date on which the Discharge of Senior Obligations has occurred.
“First Lien Pari Passu Intercreditor Agreement” means that certain Amended and Restated First Lien Pari Passu Intercreditor
Agreement, dated as of the date hereof, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, among the Collateral Agents, the Borrowers and the other Grantors party thereto.
“First Lien Notes Collateral Agent” means the “Notes Collateral Agent” as defined in the First Lien Notes
Indenture which, as of the date hereof, is Regions Bank.
“First Lien Notes Documents” means the “Note
Documents” as defined in the First Lien Notes Indenture.
“First Lien Notes Indenture” means that certain
Indenture relating to those certain 9.000% Senior Secured First Lien Notes due 2032, dated as of the date hereof, among the Parent Borrower, the guarantors party thereto, and Regions Bank, as trustee and notes collateral agent, and one or more other
financing arrangements (including, without limitation, any guarantee agreements
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and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any
Refinancing thereof; provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Joinder Agreement and (b) that in
the case of any Refinancing, the Parent Borrower designates the applicable agreements as the “First Lien Notes Indenture” (and not an Additional Senior Debt Document) hereunder.
“First Lien Notes Obligations” means the “Notes Obligations” as such term is defined in the First Lien Notes
Indenture, together with any Refinancing thereof.
“First Lien Notes Secured Parties” means the “Notes Secured
Parties” as defined in the First Lien Notes Indenture.
“First Lien Notes Security Documents” means the
“Notes Security Documents” as defined in the First Lien Notes Indenture.
“Grantors” means the Borrowers,
the other Guarantors, and each of their respective Subsidiaries or direct or indirect parent company of the Parent Borrower which has granted a security interest pursuant to any Collateral Document to secure any Secured Obligations. The Grantors
existing on the date hereof are listed on the signature pages hereto as Grantors.
“Governmental Authority” means any
nation or government, any state, provincial, country, territorial or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantors” means each Person that guarantees any Senior Obligations pursuant to any Senior Debt Documents.
“Indebtedness” has the meaning assigned to such term in the RCF Credit Agreement, TLB Credit Agreement, First Lien Notes
Indenture or the Initial Junior Lien Agreement, as applicable.
“Initial Junior Lien Agreement” means that certain
Indenture relating to those certain 9.750% Senior Secured Second Lien Notes due 2033, dated as of the date hereof, among the Parent Borrower, the guarantors party thereto, and Regions Bank, as trustee and notes collateral agent, and one or more
other financing arrangements (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from
time to time, together with any Refinancing thereof; provided (a) that the obligations in respect of any Refinancing are secured by Liens on the Shared Collateral that rank junior to the Liens securing the Senior Obligations,
(b) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Joinder Agreement and (c) that in the case of any Refinancing, the
Parent Borrower designates the applicable agreements as the “Initial Junior Lien Agreement” (and not an Additional Junior Priority Debt Document) hereunder.
“Initial Junior Lien Collateral Agent” means the “Notes Collateral Agent” as defined in the Initial Junior Lien
Agreement which, as of the date hereof, is Regions Bank.
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“Initial Junior Lien Debt Documents” means the “Note
Documents” as defined in the Initial Junior Lien Agreement.
“Initial Junior Lien Obligations” means the
“Notes Obligations” as such term is defined in the Initial Junior Lien Agreement, together with any Refinancing thereof.
“Initial Junior Lien Secured Parties” means the “Notes Secured Parties” as defined in the Initial Junior Lien
Agreement.
“Initial Junior Lien Security Documents” means the “Notes Security Documents” as defined in the
Initial Junior Lien Agreement.
“Insolvency or Liquidation Proceeding” means:
(1) any case or proceeding commenced by or against any Borrower or any other Grantor under any Bankruptcy Law, any other
proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of any Borrower or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Borrowers or any other
Grantor or any similar case or proceeding relative to the Borrowers or any other Grantor or its creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to any Borrower or
any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any
other proceeding of any type or nature in which substantially all claims of creditors of any Borrower or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
“Joinder Agreement” means a supplement to this Agreement in substantially the form of Annex II or Annex III hereof.
“Junior Permitted Actions” has the meaning assigned to such term in Section 3.01(a).
“Junior Priority Class Debt” has the meaning assigned to such term in Section 8.09.
“Junior Priority Class Debt Parties” has the meaning assigned to such term in Section 8.09.
“Junior Priority Class Debt Representative” has the meaning assigned to such term in Section 8.09.
“Junior Priority Collateral” means any “Collateral” as defined in any Initial Junior Lien Debt Document or any
other Junior Priority Debt Document or any other assets or property of the Borrowers or any other Grantor with respect to which a Lien is granted or purported to be granted pursuant to a Junior Priority Collateral Document as security for any Junior
Priority Debt Obligation.
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“Junior Priority Collateral Documents” means the Initial Junior Lien
Security Documents and each of the collateral agreements, security agreements, any Applicable Intercreditor Agreement and other instruments and documents executed and delivered by the Borrowers or any other Grantor for purposes of providing
collateral security for any Junior Priority Debt Obligation.
“Junior Priority Debt” means any Initial Junior Lien
Obligations and any Additional Junior Priority Debt.
“Junior Priority Debt Documents” means the Initial Junior Lien
Debt Documents and any Additional Junior Priority Debt Documents.
“Junior Priority Debt Facilities” means the Initial
Junior Lien Agreement and any Additional Junior Priority Debt Facilities.
“Junior Priority Debt Obligations” means the
Initial Junior Lien Obligations and any Additional Junior Priority Debt Obligations.
“Junior Priority Debt Parties”
means the Initial Junior Lien Secured Parties and any Additional Junior Priority Debt Parties.
“Junior Priority Enforcement
Date” means, with respect to any Junior Priority Representative, the date which is 180 days after the occurrence of both (i) an Event of Default (under and as defined in the Junior Priority Debt Document for which such Junior Priority
Representative has been named as Representative) and (ii) the Designated Senior Representative’s and each other Representative’s receipt of written notice from such Junior Priority Representative that (x) such Junior Priority
Representative is the Designated Junior Priority Representative and that an Event of Default (under and as defined in the Junior Priority Debt Document for which such Junior Priority Representative has been named as Representative) has occurred and
is continuing and (y) the Junior Priority Debt Obligations of the series with respect to which such Junior Priority Representative is the Junior Priority Representative are currently due and payable in full (whether as a result of acceleration
thereof or otherwise) in accordance with the terms of the applicable Junior Priority Debt Document; provided that the Junior Priority Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect
to any Shared Collateral (1) at any time any Senior Representative has commenced and is diligently pursuing any enforcement action with respect to all or a material portion of Shared Collateral or (2) at any time the Grantor which has
granted a security interest in Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Junior Priority Lien” means the Liens on the Junior Priority Collateral in favor of Junior Priority Debt Parties under
Junior Priority Collateral Documents.
“Junior Priority Majority Representatives” means Junior Priority Representatives
representing at least a majority of the then aggregate principal amount of outstanding Junior Priority Debt Obligations for borrowed money.
“Junior Priority Representative” means (i) in the case of the Initial Junior Lien Obligations or the Initial Junior
Lien Secured Parties, the Initial Junior Lien Collateral Agent and (ii) in the case of any Junior Priority Debt Facility incurred after the date hereof, the Junior Priority Debt Parties thereunder, the trustee, administrative agent, collateral
agent, security agent or similar agent under such Junior Priority Debt Facility that is named as the Representative in respect of such Junior Priority Debt Facility in the applicable Joinder Agreement.
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“Lien” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, assignment (by way of security or otherwise), deemed trust, 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 Capitalized Lease having substantially the same economic effect as any of the foregoing).
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
“Officer’s Certificate” has the meaning provided to such term in Section 8.08.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
“Possessory Collateral” means any Shared Collateral in the
possession or control of a Collateral Agent (or its agents or bailees), to the extent that possession or control thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without
limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession or control of any Collateral Agent under the terms of the Senior Collateral Documents or the Junior Priority
Collateral Documents.
“Proceeds” means the proceeds of any sale, collection or other liquidation of Shared Collateral
and any payment or distribution made in respect of Shared Collateral in a Bankruptcy Case and any amounts received by any Senior Representative or any Senior Secured Party from a Junior Priority Debt Party in respect of Shared Collateral pursuant to
this Agreement.
“Purchase Event” has the meaning assigned to such term in Section 5.07.
“RCF Credit Agreement” means that certain Credit Agreement, dated as of March 10, 2021 (as amended pursuant to that
certain Amendment No. 1 to Credit Agreement, dated as of February 22, 2022, that certain Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to Security Agreement and Amendment No. 1 to
Guaranty, dated as of March 29, 2022, that certain Amendment No. 3 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement and Consent dated as of the date hereof), by and among the
Borrowers, the lenders party thereto from time to time, Bank of America, N.A., as administrative agent and collateral agent, and one or more other financing arrangements (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, together with any Refinancing thereof; provided (a) that in the case of
any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a party hereto by executing and delivering a Joinder Agreement and (b) that in the case of any Refinancing, the Parent Borrower designates the
applicable agreements as the “RCF Credit Agreement” (and not an Additional Senior Debt Document) hereunder.
“RCF
Collateral Agent” means the “Collateral Agent” as defined in the RCF Credit Agreement which, as of the date hereof, is Bank of America, N.A.
“RCF Documents” means the “Loan Documents” as defined in the RCF Credit Agreement.
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“RCF Obligations” means the “Obligations” as defined in the
RCF Credit Agreement, together with any Refinancing thereof.
“RCF Secured Parties” means the “Secured
Parties” as defined in the RCF Credit Agreement.
“RCF Security Agreement” means the “Security
Agreement” as defined in the RCF Credit Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
“Recovery” has the meaning assigned to such term in Section 6.04.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, exchange, renew, refund, repay, prepay, redeem,
purchase, defease, retire, restructure, amend, increase, modify, supplement or replace, or to issue other Indebtedness or enter alternative financing arrangements in exchange or replacement for, such Indebtedness, in whole or in part, including by
adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including, in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any
credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” shall have correlative meanings.
“Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A 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.
“Replacement Senior Obligations” has the meaning assigned to such term in Section 8.10.
“Representative(s)” means, individually and/or collectively, each of the Senior Representatives and the Junior Priority
Representatives.
“SEC” means the United States Securities and Exchange Commission and any successor agency thereto.
“Secured Obligations” means the Senior Obligations and the Junior Priority Debt Obligations.
“Secured Parties” means the Senior Secured Parties and the Junior Priority Debt Parties.
“Senior Class Debt” has the meaning assigned to such term in Section 8.09.
“Senior Class Debt Parties” has the meaning assigned to such term in Section 8.09.
“Senior Class Debt Representative” has the meaning assigned to such term in Section 8.09.
“Senior Collateral” means any “Collateral” as defined in the RCF Credit Agreement, the TLB Credit Agreement,
the First Lien Notes Indenture or any other Senior Debt Document or any other assets or property of the Borrowers or any other Grantor with respect to which a Lien is granted or purported to be granted pursuant to a Senior Collateral Document as
security for any Senior Obligations.
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“Senior Collateral Documents” means (a) the RCF Security Agreement
and the other Collateral Documents (as defined in the RCF Credit Agreement), (b) the TLB Security Agreement and the other Collateral Documents (as defined in the TLB Credit Agreement), (c) the First Lien Notes Security Documents and
(d) any other “Collateral Documents” as defined in any Applicable Intercreditor Agreement (upon and after the initial execution and delivery thereof by the initial parties thereto) and each of the collateral agreements, security
agreements and other instruments and documents executed and delivered by the Borrowers or any other Grantor for purposes of providing collateral security for any Senior Obligation.
“Senior Debt Documents” means, collectively, (a) the RCF Documents, (b) the TLB Documents, (c) First Lien
Notes Documents and (d) the Additional Senior Debt Documents.
“Senior Facilities” means (a) the RCF Credit
Agreement, (b) the TLB Credit Agreement, (c) the First Lien Notes Indenture and (d) any Additional Senior Debt Facilities.
“Senior Lien” means the Liens on the Senior Collateral in favor of the Senior Secured Parties under the Senior Collateral
Documents.
“Senior Obligations” means (a) all the RCF Obligations, (b) all the TLB Obligations, (c) all
the First Lien Notes Obligations and (d) any Additional Senior Debt Obligations.
“Senior Representative” means
(a) in the case of any RCF Obligations and the RCF Secured Parties, the RCF Collateral Agent, (b) in the case of any TLB Obligations and the TLB Secured Parties, the TLB Collateral Agent, (c) in the case of any First Lien Notes
Obligations and the First Lien Notes Secured Parties, the First Lien Notes Collateral Agent and (d) in the case of any Additional Senior Debt Facility and the Additional Senior Debt Parties thereunder, the trustee, administrative agent,
collateral agent, security agent or similar agent under such Additional Senior Debt Facility that is named as the Representative in respect of such Additional Senior Debt Facility hereunder or in the applicable Joinder Agreement.
“Senior Secured Parties” means (a) the RCF Secured Parties, (b) the TLB Secured Parties, (c) the First Lien
Notes Secured Parties and (d) any Additional Senior Debt Parties.
“Shared Collateral” means, at any time,
Collateral in which the holders of Senior Obligations under at least one Senior Facility (or their Representatives) and the holders of Junior Priority Debt Obligations under at least one Junior Priority Debt Facility (or their Representatives) hold
a security interest at such time (or, in the case of the Senior Facilities, are deemed pursuant to Article II to hold a security interest). If, at any time, any portion of the Senior Collateral under one or more Senior Facilities does not constitute
Junior Priority Collateral under one or more Junior Priority Debt Facilities, then such portion of such Senior Collateral shall constitute Shared Collateral only with respect to the Junior Priority Debt Facilities for which it constitutes Junior
Priority Collateral and shall not constitute Shared Collateral for any Junior Priority Debt Facility which does not have a security interest in such Collateral at such time.
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“Subsidiary” of a Person means a corporation, company, 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) or the management of which is
otherwise controlled, directly or indirectly, through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Parent Borrower.
“TLB Collateral Agent” means the “Collateral Agent” as defined in
the TLB Credit Agreement which, as of the date hereof, is JPMorgan Chase Bank, N.A.,.
“TLB Credit Agreement” means
that certain Term Loan Credit Agreement, dated as of March 29, 2022 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 2 to Term Loan Credit
Agreement and Consent dated as of the date hereof), by and among the Borrowers, the lenders party thereto from time to time, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as amended, restated, amended and restated,
extended, supplemented or otherwise modified from time to time, together with any Refinancing thereof; provided (a) that in the case of any Refinancing, the collateral agent for any such other financing arrangement or agreement becomes a
party hereto by executing and delivering a Joinder Agreement and (b) that in the case of any Refinancing, the Parent Borrower designates the applicable agreements as the “TLB Credit Agreement” (and not an Additional Senior Debt
Document) hereunder.
“TLB Documents” means the “Loan Documents” as defined in the TLB Credit Agreement.
“TLB Obligations” means the “Obligations” as such term is defined in the TLB Credit Agreement, together
with any Refinancing thereof.
“TLB Secured Parties” means the TLB Collateral Agent and the holders of the TLB
Obligations issued pursuant to the TLB Credit Agreement.
“TLB Security Agreement” means the “Security
Agreement” as defined in the TLB Credit Agreement, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
“Uniform Commercial Code” or “UCC” means, unless otherwise specified, the Uniform Commercial Code as
from time to time in effect in the State of New York.
SECTION 1.02. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time
amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express
reference is made to such subsidiaries, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (iv) all references herein to
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Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term
“or” is not exclusive.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01. Subordination.
(a) Notwithstanding the date, time, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection
of any Liens granted to any Junior Priority Representative or any Junior Priority Debt Parties on the Shared Collateral or of any Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any actual or
alleged defect in any of the foregoing) and notwithstanding any provision of the UCC, any applicable law, any Junior Priority Debt Document or any Senior Debt Document or any other circumstance whatsoever, each Junior Priority Representative, on
behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby agrees that (a) any Lien on the Shared Collateral securing or purporting to secure any Senior Obligations now or hereafter held by or on behalf
of any Senior Representative or any other Senior Secured Party or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all
respects and prior to any Lien on the Shared Collateral securing or purporting to secure any Junior Priority Debt Obligations and (b) any Lien on the Shared Collateral securing or purporting to secure any Junior Priority Debt Obligations now or
hereafter held by or on behalf of any Junior Priority Representative, any Junior Priority Debt Parties or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be
junior and subordinate in all respects to all Liens on the Shared Collateral securing or purporting to secure any Senior Obligations. All Liens on the Shared Collateral securing or purporting to secure any Senior Obligations shall be and remain
senior in all respects and prior to all Liens on the Shared Collateral securing or purporting to secure any Junior Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Obligations are subordinated to any Lien
securing any other obligation of the Borrowers, any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
SECTION 2.02. Nature of Senior Lender Claims. Each Junior Priority Representative, on behalf of itself and each Junior Priority Debt
Party under its Junior Priority Debt Facility, acknowledges that (a) a portion of the Senior Obligations may be revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced
and subsequently reborrowed, (b) the terms of the Senior Debt Documents and the Senior Obligations may be amended, amended and restated, supplemented or otherwise modified, and the Senior Obligations, or a portion thereof, may be Refinanced
from time to time and (c) the aggregate amount of the Senior Obligations may be increased from time to time, in each case, without notice to or consent by the Junior Priority Representatives or the Junior Priority Debt Parties and without
affecting the provisions hereof. The Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, amendment and restatement, supplement or other modification, or any Refinancing, of either the Senior
Obligations or the Junior Priority Debt Obligations, or any portion thereof. As between the Borrowers and the other Grantors and the Junior Priority Debt Parties, the foregoing provisions will not limit or otherwise affect the obligations of the
Borrowers and the Grantors contained in any Junior Priority Debt Document with respect to the incurrence of additional Senior Obligations.
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SECTION 2.03. Prohibition on Contesting Liens. Each of the Junior Priority
Representatives, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of any Lien securing, or the allowability of any claim asserted with respect to, any Senior Obligations held (or purported to be held)
by or on behalf of any Senior Representative or any of the other Senior Secured Parties or other agent or trustee therefor in any Senior Collateral, and each Senior Representative, for itself and on behalf of each Senior Secured Party under its
Senior Facility, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or
enforceability of any Lien securing, or the allowability of any claim asserted with respect to, any Junior Priority Debt Obligations held (or purported to be held) by or on behalf of any of any Junior Priority Representative or any of the Junior
Priority Debt Parties in the Junior Priority Collateral. Notwithstanding the foregoing, no provision in this Agreement shall be construed to prevent or impair the rights of any Senior Representative to enforce this Agreement (including the priority
of the Liens securing the Senior Obligations as provided in Section 2.01) or any of the Senior Debt Documents.
SECTION 2.04. No
Other Liens. The parties hereto agree that, so long as the Discharge of Senior Obligations has not occurred (a) (i), none of the Grantors shall, or shall permit any of its subsidiaries to, grant or permit any Lien on any asset or property
of such Grantor to secure any Junior Priority Debt Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset or property of such Grantor to secure the Senior Obligations and (ii) none of the Grantors shall grant
any Liens on any asset or property of any Grantor to secure any Senior Obligations unless it has granted, or concurrently therewith grants, a Lien on such asset or property of such Grantor to secure the Junior Priority Debt Obligations; provided
that this provision will not be violated with respect to any Senior Obligations or Junior Priority Debt Obligations, as applicable, if the applicable Representatives are given a reasonable opportunity to accept a Lien on any asset or property and
either the Parent Borrower or the applicable Representatives state in writing that the applicable Senior Debt Documents or Junior Priority Debt Documents in respect thereof prohibit the applicable Representatives from accepting a Lien on such asset
or property or the applicable Representatives otherwise expressly decline to accept a Lien on such asset or property (any such prohibited or declined Lien, a “Declined Lien”) and (b)(i) if any Junior Priority Representative or any
Junior Priority Debt Party shall hold any Lien on any assets or property of any Grantor securing any Junior Priority Debt Obligations that are not also subject to the Liens securing all Senior Obligations under the Senior Collateral Documents, other
than with respect to a Declined Lien, such Junior Priority Representative or Junior Priority Debt Party (1) shall notify the Designated Senior Representative promptly upon becoming aware thereof and, unless such Grantor shall promptly also
grant a similar Lien on such assets or property to each Senior Representative as security for the Senior Obligations, shall assign such Lien to the Designated Senior Representative as security for all Senior Obligations for the benefit of the Senior
Secured Parties (but may retain a junior Lien on such assets or property subject to the terms hereof) and (2) until such assignment or such grant of a similar Lien to each Senior Representative, shall be deemed to hold and have held such Lien
for the benefit of each Senior Representative and the other Senior Secured Parties as security for the Senior Obligations and (ii) if any Senior Representative or any Senior Secured Party shall hold any Lien on any assets or property of any
Grantor securing any Senior Obligations that are not also subject to the second-priority Liens securing all Junior Priority
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Debt Obligations under the Junior Priority Collateral Documents, other than with respect to a Declined Lien, such Senior Representative or Senior Secured Party shall notify the Designated Junior
Priority Representative promptly upon becoming aware thereof. To the extent that the provisions of clause (a)(i) or (b)(i) of the immediately preceding sentences are not complied with for any reason, without limiting any other right or remedy
available to any Senior Representative or any other Senior Secured Party, each Junior Priority Representative agrees, for itself and on behalf of the other Junior Priority Debt Parties, that any amounts received by or distributed to any Junior
Priority Debt Party pursuant to or as a result of any Lien granted in contravention of this Section 2.04 shall be subject to Sections 4.01 and 4.02 of this Agreement.
SECTION 2.05. Perfection of Liens. Except for the limited agreements of the Senior Representatives pursuant to Section 5.05
hereof, none of the Senior Representatives or the Senior Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Junior Priority Representatives or the
Junior Priority Debt Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Senior Secured Parties and the Junior Priority Debt Parties and shall not impose on the Senior
Representatives, the Senior Secured Parties, the Junior Priority Representatives, the Junior Priority Debt Parties or any agent or trustee therefor any obligations in respect of the disposition of Proceeds of any Shared Collateral which would
conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or Governmental Authority or any applicable law.
ARTICLE III
Enforcement
SECTION 3.01. Exercise of Remedies.
(a) So long as the Discharge of Senior Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Borrower or any other Grantor, (i) neither any Junior Priority Representative nor any Junior Priority Debt Party will (x) exercise or seek to exercise any rights or remedies (including setoff) with respect to
any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure
proceeding or action brought with respect to the Shared Collateral or any other Senior Collateral by any Senior Representative or any Senior Secured Party in respect of the Senior Obligations, the exercise of any right by any Senior Representative
or any Senior Secured Party (or any agent or sub-agent on their behalf) in respect of the Senior Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which any
Senior Representative or any Senior Secured Party either is a party or may have rights as a third-party beneficiary, or any other exercise by any such party of any rights and remedies relating to the Shared Collateral under the Senior Debt Documents
or otherwise in respect of the Senior Collateral or the Senior Obligations, or (z) object to the forbearance by the Senior Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or
remedies relating to the Shared Collateral in respect of Senior Obligations and (ii) the Senior Representatives and the Senior Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right
to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Shared Collateral without any consultation with or the consent of any Junior Priority Representative or any Junior Priority Debt
Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Borrowers or any other Grantor, any Junior
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Priority Representative may (x) file a claim, proof of claim, or statement of interest with respect to the Junior Priority Debt Obligations under its Junior Priority Debt Facility,
(y) credit bid their debt in accordance with Section 6.10(c) of this Agreement and (z) make any arguments and motions that do not violate or contravene the terms of this Agreement, (B) any Junior Priority Representative may take
any action (not adverse to the prior Liens on the Shared Collateral securing the Senior Obligations or the rights of the Senior Representatives or the Senior Secured Parties to exercise remedies in respect thereof) in order to create, prove,
perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (C) any Junior Priority Representative and the Junior Priority Debt Parties may exercise their rights and remedies
as unsecured creditors, to the extent provided in Section 5.04 of this Agreement, (D) the Junior Priority Debt Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary
proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Junior Priority Debt Parties or the avoidance of any Junior Priority Lien to the extent not inconsistent with the terms of this
Agreement, (E) any Junior Priority Debt Party may (subject to the provisions of Section 6.10(b) of this Agreement) vote on any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement
proposed in or in connection with any Insolvency or Liquidation Proceeding and (F) from and after the Junior Priority Enforcement Date, the Designated Junior Priority Representative may exercise or seek to exercise any rights or remedies
(including setoff) with respect to any Shared Collateral in respect of any Junior Priority Debt Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure) (clauses
(A) through (F) above referred to as “Junior Permitted Actions”). In exercising rights and remedies with respect to the Senior Collateral, the Senior Representatives and the Senior Secured Parties may enforce the
provisions of the Senior Debt Documents and exercise remedies in accordance with the terms thereof, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the
rights of an agent appointed by them to sell or otherwise dispose of Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform
Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b) So
long as the Discharge of Senior Obligations has not occurred, except pursuant to Junior Permitted Actions, each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees
that it will not, in the context of its role as secured creditor, take or receive any Shared Collateral or any Proceeds of Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Shared
Collateral and that any collateral or such proceeds taken by it shall be paid over to the Designated Senior Representative in accordance with Section 4.02 of this Agreement, in respect of Junior Priority Debt Obligations. Without limiting the
generality of the foregoing, unless and until the Discharge of Senior Obligations has occurred, except pursuant to Junior Permitted Actions, the sole right of the Junior Priority Representatives and the Junior Priority Debt Parties with respect to
the Shared Collateral is to hold a Lien on the Shared Collateral in respect of Junior Priority Debt Obligations pursuant to the Junior Priority Debt Documents for the period and to the extent granted therein and to receive a share of the Proceeds
thereof, if any, after the Discharge of Senior Obligations has occurred.
(c) Without in any way limiting Junior Permitted Actions,
(i) each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that neither such Junior Priority Representative nor any such Junior Priority Debt Party will
take any action that would hinder or otherwise interfere with any exercise of remedies undertaken by any Senior Representative or any Senior Secured Party with respect to
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the Shared Collateral under the Senior Debt Documents, including any sale, lease, exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise, and
(ii) each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby waives any and all rights it or any such Junior Priority Debt Party may have as a junior lien
creditor or otherwise to object to the manner in which the Senior Representatives or the Senior Secured Parties seek to enforce or collect the Senior Obligations or the Liens granted on any of the Senior Collateral, regardless of whether any action
or failure to act by or on behalf of any Senior Representative or any other Senior Secured Party is adverse to the interests of the Junior Priority Debt Parties.
(d) Each Junior Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Junior
Priority Debt Document shall be deemed to restrict in any way the rights and remedies of the Senior Representatives or the Senior Secured Parties with respect to the Senior Collateral as set forth in this Agreement and the Senior Debt Documents.
(e) Without in any way limiting Junior Permitted Actions, the Designated Senior Representative or any Person authorized by it shall have
the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with
respect thereto, in each case in accordance with the terms of the Senior Debt Documents. Following the Discharge of Senior Obligations, the Designated Junior Priority Representative or any Person authorized by it who may be instructed by the Junior
Priority Majority Representatives shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Junior Priority Representative or any Person authorized by it who may be instructed by the Junior
Priority Majority Representatives shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Junior Priority Debt Parties with respect to
the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Junior Priority Representatives, or for the taking of any other action authorized by the Junior Priority Collateral Documents; provided,
however, that nothing in this Section 3.01(e) shall impair the right of any Junior Priority Representative or other agent or trustee acting on behalf of the Junior Priority Debt Parties to take such actions with respect to the Collateral
after the Discharge of Senior Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Junior Priority Debt Parties or the Junior Priority Debt Obligations.
SECTION 3.02. Cooperation. Without in any way limiting Junior Permitted Actions, each Junior Priority Representative, on behalf of
itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that, unless and until the Discharge of Senior Obligations has occurred, it will not commence, or join with any Person (other than the Senior Secured Parties
and the Senior Representatives upon the request of the Designated Senior Representative) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Shared Collateral
under any of the Junior Priority Debt Documents or otherwise in respect of the Junior Priority Debt Obligations.
SECTION 3.03. Actions
upon Breach. Should any Junior Priority Representative or any Junior Priority Debt Party, contrary to this Agreement, in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to
realize upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, any Senior Representative or other Senior Secured Party (in its or their own name or in the name of the Borrowers or any other
Grantor) or the Borrowers may obtain relief against
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such Junior Priority Representative or such Junior Priority Debt Party by injunction, specific performance or other appropriate equitable relief. Each Junior Priority Representative, on behalf of
itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby (i) agrees that the Senior Secured Parties’ damages from the actions of the Junior Priority Representatives or any Junior Priority Debt Party may
at that time be difficult to ascertain and may be irreparable and waives any defense that the Borrowers, any other Grantor or the Senior Secured Parties cannot demonstrate damage or be made whole by the awarding of damages and (ii) irrevocably
waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by any Senior Representative or any other Senior Secured Party.
SECTION 3.04. No Additional Rights for the Grantors Hereunder. If any Senior Secured Party or Junior Priority Debt Party shall enforce
its rights or remedies in violation of the terms of this Agreement, no Grantor shall be entitled to use such violation as a defense to any action by any Senior Secured Party or Junior Priority Debt Party, nor to assert such violation as a
counterclaim or basis for setoff or recoupment against any Senior Secured Party or Junior Priority Debt Party.
ARTICLE IV
Payments
SECTION 4.01.
Application of Proceeds. After an “Event of Default” under any Senior Debt Document has occurred and is continuing and until such “Event of Default” under such Senior Debt Document is cured or waived, so long as the
Discharge of Senior Obligations has not occurred, the Shared Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Shared Collateral upon the exercise of remedies shall be applied to the
Senior Obligations in such order as specified in the relevant Senior Debt Documents (including an Applicable Intercreditor Agreement) to permanently reduce the Senior Obligations until the Discharge of Senior Obligations has occurred. Upon the
Discharge of Senior Obligations, each applicable Senior Representative shall deliver promptly to the Designated Junior Priority Representative any Shared Collateral or Proceeds thereof held by it in the same form as received, with any necessary
endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Designated Junior Priority Representative to the Junior Priority Debt Obligations in such order as specified in the relevant Junior Priority Debt
Documents (including an Applicable Intercreditor Agreement) until the Discharge of the Junior Priority Debt Obligations has occurred.
SECTION 4.02. Payments Over. Unless and until the Discharge of Senior Obligations has occurred, any Shared Collateral or Proceeds
thereof received by any Junior Priority Representative or any Junior Priority Debt Party in connection with the exercise of any right or remedy (including setoff) relating to the Shared Collateral or any distribution made in respect of any Shared
Collateral in any Insolvency or Liquidation Proceeding, in contravention of this Agreement or otherwise, shall be segregated and held in trust for the benefit of and forthwith paid over to the Designated Senior Representative for the benefit of the
Senior Secured Parties in the same form as received and applied pursuant to Section 4.01 of this Agreement, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The Designated Senior Representative is
hereby authorized to make any such endorsements as agent for each of the Junior Priority Representatives or any such Junior Priority Debt Party. This authorization is coupled with an interest and is irrevocable.
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ARTICLE V
Other Agreements
SECTION
5.01. Releases.
(a) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its
Junior Priority Debt Facility, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of the Borrowers or any subsidiary of the Parent
Borrower), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties upon such Shared Collateral to secure Junior Priority Debt Obligations shall terminate and be released, automatically and without any further
action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure Senior Obligations; provided that, in the case of any such sale, transfer or other disposition of Shared Collateral (other than
any sale, transfer or other disposition in connection with the enforcement or exercise of any rights or remedies with respect to the Shared Collateral), the Liens granted to the Junior Priority Representatives and the Junior Priority Debt Parties
shall not be so released if (i) such sale, transfer or other disposition is not permitted under the terms of any Junior Priority Debt Document or (ii) such release of Senior Secured Parties’ Liens is granted upon or following the
Discharge of Senior Obligations. Upon delivery to a Junior Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the Senior Obligations has become effective (or shall become
effective concurrently with such termination and release of the Liens granted to the Junior Priority Debt Parties and the Junior Priority Representatives) and any necessary or proper instruments of termination or release prepared by any Borrower or
any other Grantor, such Junior Priority Representative will promptly execute, deliver or acknowledge, without recourse, representation or warranty of any kind, at such Borrower’s or the other Grantor’s sole cost and expense, such
instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties under
its Junior Priority Debt Facility, to release the Liens on the Junior Priority Collateral as set forth in the relevant Junior Priority Debt Documents.
(b) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility,
hereby irrevocably constitutes and appoints the Designated Senior Representative and any officer or agent of the Designated Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power
and authority in the place and stead of such Junior Priority Representative or such Junior Priority Debt Party or in the Designated Senior Representative’s own name, from time to time in the Designated Senior Representative’s discretion,
for the purpose of carrying out the terms of Section 5.01(a) of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of
Section 5.01(a) of this Agreement, including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each
Junior Priority Debt Party under its Junior Priority Debt Facility, hereby consents to the application whether prior to or after an event of default under any Senior Debt Document of Proceeds of Shared Collateral to the repayment of Senior
Obligations pursuant to the Senior Debt Documents, provided that noting in this Section 5.01(c) shall be construed to prevent or impair the rights of the Junior Priority Representatives or the Junior Priority Debt Parties to receive Proceeds in
connection with the Junior Priority Debt Obligations not otherwise in contravention of this Agreement.
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(d) Notwithstanding anything to the contrary in any Junior Priority Collateral Document, in
the event the terms of a Senior Collateral Document and a Junior Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of
Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to,
(iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item
of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the
agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a
landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated Senior Representative
and any Junior Priority Representative or Junior Priority Debt Party, such Grantor may, until the applicable Discharge of Senior Obligations has occurred, comply with such requirement under the applicable Junior Priority Collateral Document as it
relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated Senior Representative.
SECTION 5.02. Insurance and Condemnation Awards. Unless and until the Discharge of Senior Obligations has occurred, the Designated
Senior Representative and the Senior Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Senior Debt Documents, (a) to be named as additional insured and loss payee under any insurance
policies maintained from time to time by any Grantor, (b) to adjust settlement for any insurance policy covering the Shared Collateral in the event of any loss thereunder and (c) to approve any award granted in any condemnation or similar
proceeding affecting the Shared Collateral. Unless and until the Discharge of Senior Obligations has occurred, all proceeds of any such policy and any such award, if in respect of the Shared Collateral, shall be paid (i) first, prior to the
occurrence of the Discharge of Senior Obligations, to the Designated Senior Representative for the benefit of Senior Secured Parties pursuant to the terms of the Senior Debt Documents, (ii) second, after the occurrence of the Discharge of
Senior Obligations, to the Designated Junior Priority Representative for the benefit of the Junior Priority Debt Parties pursuant to the terms of the applicable Junior Priority Debt Documents and (iii) third, if no Junior Priority Debt
Obligations or Senior Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If any Junior Priority Representative or any Junior
Priority Debt Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the Designated Senior Representative in accordance with the terms of
Section 4.02.
SECTION 5.03. Amendments to Debt Documents.
(a) The Senior Debt Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms, and the
Indebtedness under the Senior Debt Documents may be Refinanced, in each case, without the consent of any Junior Priority Debt Party; provided, however, that, without the consent of the Junior Priority Majority Representatives,
no such amendment, restatement, supplement, modification or Refinancing (or successive amendments, restatements, supplements, modifications or Refinancings) shall:
(i) add any additional restrictions on the payment of the Junior Priority Debt Obligations; or
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(ii) contravene the provisions of this Agreement.
(b) Without the prior written consent of the Senior Representatives, no Junior Priority Debt Document may be amended, restated, supplemented
or otherwise modified, or entered into, and no Indebtedness under the Junior Priority Debt Documents may be Refinanced, to the extent such amendment, restatement, supplement or modification or Refinancing, or the terms of such new Junior Priority
Debt Document, would (i) contravene the provisions of this Agreement or any then extant Junior Priority Debt Document or Senior Debt Document, (ii) change to earlier dates any scheduled dates for payment of principal (including the final
maturity date) or of interest on Indebtedness under such Junior Priority Debt Document or (iii) reduce the capacity to incur Indebtedness for borrowed money constituting Senior Obligations to an amount less than the aggregate principal amount
of term loans or outstanding notes and aggregate principal amount of revolving commitments, in each case, under the Senior Debt Documents on the day of any such amendment, restatement, supplement, modification or Refinancing.
(c) Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility,
agrees that each Junior Priority Collateral Document under its Junior Priority Debt Facility shall include the following language (or language to similar effect reasonably approved by the Designated Senior Representative):
“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the Junior Priority Representative
pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the Senior Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests
granted to (a) Bank of America, N.A., as collateral agent, pursuant to or in connection with that certain Credit Agreement, dated as of March 10, 2021 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated as
of February 22, 2022, that certain Joinder to Credit Agreement, Amendment No. 2 to Credit Agreement, Amendment No. 1 to Security Agreement and Amendment No. 1 to Guaranty, dated as of March 29, 2022, that certain Amendment
No. 3 to Credit Agreement, dated as of November 8, 2024 and that certain Amendment No. 4 to Credit Agreement and Consent dated as of June 15, 2026), among the Parent Borrower, the Borrowers, the other guarantors from time to time
party thereto, the lenders from time to time party thereto, Bank of America, N.A., as administrative agent and collateral agent, as further amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time,
(b) JPMorgan Chase Bank, N.A., as collateral agent, pursuant to or in connection with that certain Term Loan Credit Agreement, dated as of March 29, 2022 (as amended pursuant to that certain Amendment No. 1 to Credit Agreement, dated
as of November 8, 2024 and that certain Amendment No. 2 to Term Loan Credit Agreement and Consent dated as of June 15, 2026), among the Parent Borrower, the Borrowers, the other guarantors from time to time party
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thereto, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, as further amended, restated, amended and restated, extended,
supplemented or otherwise modified from time to time and (c) Regions Bank, as notes collateral agent pursuant to or in connection with the Indenture, dated as of June 15, 2026, among the Parent Borrower, the Borrowers, the other guarantors
from time to time party thereto, and Regions Bank, as trustee and notes collateral agent, as further amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time and (ii) the exercise of any right or
remedy by the Junior Priority Representative hereunder is subject to the limitations and provisions of the Intercreditor Agreement dated as of June 15, 2026 (as amended, restated, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), among Bank of America, N.A., as RCF Collateral Agent, JPMorgan Chase Bank, N.A., as TLB Collateral Agent, Regions Bank, as First Lien Notes Collateral Agent, Regions Bank, as Initial Junior Lien
Collateral Agent, the additional Representatives from time to time party thereto, the Parent Borrower, the Borrowers and their subsidiaries party thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of
this Agreement, the terms of the Intercreditor Agreement shall govern. The parties hereto acknowledge, authorize and consent to the entry by each of the Senior Representatives and the Junior Priority Representative into the Intercreditor
Agreement.”
(d) In the event that the Designated Senior Representative and/or the Senior Secured Parties enter into any amendment,
waiver or consent in respect of any of the Senior Collateral Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any Senior Collateral Document or changing in any manner the
rights of the Senior Representatives, the Senior Secured Parties, the Borrowers or any other Grantor thereunder (including the release of any Liens in Senior Collateral) in a manner that is applicable to all Senior Facilities, then such amendment,
waiver or consent shall apply automatically to any comparable provision of each comparable Junior Priority Collateral Document without the consent of any Junior Priority Representative or any Junior Priority Debt Party and without any action by any
Junior Priority Representative, the Borrowers or any other Grantor; provided, however, that (i) no such amendment, waiver or consent shall (A) remove assets or property subject to the Junior Priority Liens or release any such
Liens, except to the extent that such release is permitted or required by Section 5.01(a) of this Agreement and provided that there is a concurrent release of the corresponding Senior Liens or (B) amend, modify or otherwise affect the
rights or duties of any Junior Priority Representative in its role as Junior Priority Representative without its prior written consent and (ii) written notice of such amendment, waiver or consent shall have been given by the Borrowers to each
Junior Priority Representative within ten (10) Business Days after the effectiveness of such amendment, waiver or consent.
(e) The
Parent Borrower agrees to deliver to each of the Designated Senior Representative and the Designated Junior Priority Representative copies of (i) any amendments, supplements or other modifications to the Senior Debt Documents or the Junior
Priority Debt Documents and (ii) any new Senior Debt Documents or Junior Priority Debt Documents promptly after effectiveness thereof.
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SECTION 5.04. Rights as Unsecured Creditors. The Junior Priority Representatives and
the Junior Priority Debt Parties may exercise rights and remedies as unsecured creditors against the Borrowers and any other Grantor in accordance with the terms of the Junior Priority Debt Documents and applicable law so long as such rights and
remedies do not violate any express provision of this Agreement (including any provision prohibiting or restricting the Junior Priority Debt Parties from taking various actions or making various objections). Nothing in this Agreement shall prohibit
the receipt by any Junior Priority Representative or any Junior Priority Debt Party of the required payments of principal, premium, interest, fees and other amounts due under the Junior Priority Debt Documents so long as such receipt is not the
direct or indirect result of the exercise in contravention of this Agreement by a Junior Priority Representative or any Junior Priority Debt Party of rights or remedies as a secured creditor in respect of Shared Collateral in contravention of this
Agreement. In the event any Junior Priority Representative or any Junior Priority Debt Party becomes a judgment lien creditor in respect of Shared Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Junior
Priority Debt Obligations, such judgment lien shall be subordinated to the Liens securing Senior Obligations on the same basis as the other Liens securing the Junior Priority Debt Obligations are so subordinated to such Liens securing Senior
Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the Senior Representatives or the Senior Secured Parties may have with respect to the Senior Collateral.
SECTION 5.05. Bailment for Perfection of Security Interest.
(a) The Possessory Collateral shall be delivered to the Bailee Agent and by accepting such Possessory Collateral such Bailee Agent agrees to
hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of the Junior Priority
Representatives and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Junior Priority Collateral Documents, in each case, subject to the terms and
conditions of this Section 5.05.
(b) Except as otherwise specifically provided herein, until the Discharge of Senior Obligations has
occurred, the Senior Representatives and the Senior Secured Parties shall be entitled to deal with the Possessory Collateral in accordance with the terms of the Senior Debt Documents as if the Liens under the Junior Priority Collateral Documents did
not exist. The rights of the Junior Priority Representatives and the Junior Priority Debt Parties with respect to the Possessory Collateral shall at all times be subject to the terms of this Agreement.
(c) The Senior Representatives and the Senior Secured Parties shall have no obligation whatsoever to the Junior Priority Representatives or
any Junior Priority Debt Party to assure that any of the Possessory Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Shared Collateral, except as expressly set
forth in this Section 5.05. The duties or responsibilities of the Senior Representatives under this Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in paragraphs
(a) and (b) of this Section 5.05 as sub-agent and gratuitous bailee for the relevant Junior Priority Representative for purposes of perfecting the Lien held by such Junior Priority Representative.
(d) The Senior Representatives shall not have by reason of the Junior Priority Collateral Documents or this Agreement, or any other document,
a fiduciary relationship in respect of any Junior Priority Representative or any Junior Priority Debt Party, and each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt
Facility, hereby waives and releases the Senior Representatives from all claims and liabilities arising pursuant to the Senior Representatives’ roles under this Section 5.05 as sub-agents and gratuitous bailees with respect to the Shared
Collateral.
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(e) Upon the Discharge of Senior Obligations, each applicable Senior Representative shall,
at the Grantors’ sole cost and expense, (i) (A) deliver to the Designated Junior Priority Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled
by such Senior Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Possessory Collateral, together with any necessary endorsements and notices to depositary banks, securities
intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, or (B) direct and deliver such
Shared Collateral as a court of competent jurisdiction may otherwise direct, (ii) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued
by such insurance carrier and (iii) notify any Governmental Authority involved in any condemnation or similar proceeding involving any Grantor that the Designated Junior Priority Representative is entitled to approve any awards granted in such
proceeding. The Borrowers and the other Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify each Senior Representative for loss or damage suffered by such Senior Representative;
provided that the Borrowers shall not indemnify any Senior Representative for loss or damages suffered by such Senior Representative as a result of such Senior Representative’s own willful misconduct, gross negligence or bad faith. The Senior
Representatives have no obligations to follow instructions from any Junior Priority Representative or any other Junior Priority Debt Party in contravention of this Agreement.
(f) None of the Senior Representatives nor any of the other Senior Secured Parties shall be required to marshal any present or future
collateral security for any obligations of the Parent Borrower or any Subsidiary to any Senior Representative or any Senior Secured Party under the Senior Debt Documents or any assurance of payment in respect thereof, or to resort to such collateral
security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing
or arising.
SECTION 5.06. When Discharge of Senior Obligations Deemed To Not Have Occurred. If, at any time substantially
concurrently with the occurrence of the Discharge of Senior Obligations, any Borrower or any Subsidiary consummates any Refinancing of any Senior Obligations, then such Discharge of Senior Obligations (other than in respect of payment of indemnities
surviving the Discharge of Senior Obligations) shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of such designation as a result of the occurrence of
such first Discharge of Senior Obligations) and the applicable agreement governing such Senior Obligations shall automatically be treated as a Senior Debt Document for all purposes of this Agreement, including for purposes of the Lien priorities and
rights in respect of Shared Collateral set forth herein and the agent, representative or trustee for the holders of such Senior Obligations shall be the Senior Representative for all purposes of this Agreement; provided that such Senior
Representative shall have become a party to this Agreement pursuant to Section 8.09 of this Agreement. Upon receipt of notice of such incurrence (including the identity of the new Senior Representative) from the Parent Borrower, each Junior
Priority Representative (including the Designated Junior Priority Representative) shall promptly (i) enter into such documents and agreements, including amendments or supplements to this Agreement, as the Parent Borrower or such new Senior
Representative shall reasonably request in writing in order to provide the new Senior
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Representative the rights of a Senior Representative contemplated hereby, (ii) deliver to such Senior Representative, to the extent that it is legally permitted to do so, all Shared
Collateral, including all proceeds thereof, held or controlled by such Junior Priority Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Possessory Collateral, together with any
necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or
access to Shared Collateral and (iii) notify, upon request from a Grantor, any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such
insurance carrier and (iv) notify, upon request from a Grantor, and Governmental Authority involved in any condemnation or similar proceeding involving a Grantor that the new Senior Representative is entitled to approve any awards granted in
such proceeding.
SECTION 5.07. Purchase Right. Without prejudice to the enforcement of the Senior Secured Parties remedies, the
Senior Secured Parties agree that following (a) the acceleration of all Senior Obligations in accordance with the terms of the Senior Debt Documents or (b) the commencement of an Insolvency or Liquidation Proceeding (each, a
“Purchase Event”), within thirty (30) days of the Purchase Event, one or more of the Junior Priority Debt Parties may request, and the Senior Secured Parties hereby offer the Junior Priority Debt Parties the option, to
purchase all, but not less than all, of the aggregate amount of outstanding Senior Obligations outstanding at the time of purchase at par, plus any premium, if any, that would be applicable upon prepayment of the Senior Obligations and accrued and
unpaid interest, fees, and expenses, without warranty or representation or recourse (except for representations and warranties required to be made by assigning lenders or noteholders pursuant to any applicable Senior Debt Document). If such right is
exercised, the parties shall endeavor to close promptly thereafter but in any event within ten (10) Business Days of the request. If one or more of the Junior Priority Debt Parties exercise such purchase right, it shall be exercised pursuant to
documentation mutually acceptable to each of the Senior Representatives and the Junior Priority Representative. If none of the Junior Priority Debt Parties exercise such right within thirty (30) days of such Purchase Event, the Senior Secured
Parties shall have no further obligations pursuant to this Section 5.07 for such Purchase Event and may take any further actions in their sole discretion in accordance with the Senior Debt Documents and this Agreement.
ARTICLE VI
Insolvency or
Liquidation Proceedings.
SECTION 6.01. Financing Issues. Until the Discharge of Senior Obligations has occurred, if the
Borrowers or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and any Senior Representative or any Senior Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or other collateral or to
consent (or not object) to the Borrowers’ or any other Grantor’s obtaining financing under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP
Financing”), then each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it will raise no objection to and will not otherwise contest
(i) such sale, use or lease of such cash or other collateral, unless each Senior Representative shall oppose or object to such use of cash collateral (in which case, no Junior Priority Representative nor any other Junior Priority Debt Party
shall seek any relief in connection therewith that is inconsistent with the relief being sought by the Senior Secured Parties); or (ii) such DIP Financing, unless each Senior Representative shall oppose or object to such DIP Financing
(provided that the foregoing shall not prevent the Junior Priority Debt Parties from proposing any
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other DIP Financing to any Grantors or to a court of competent jurisdiction), and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03,
will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any Senior Obligations are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed
hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Junior Priority Debt Obligations are so subordinated to Liens
securing Senior Obligations under this Agreement, (y) any adequate protection Liens provided to the Senior Secured Parties, and (z) to any “carve-out” for professional and United States Trustee fees agreed to by the Senior
Representatives. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, further agrees that, until the Discharge of Senior Obligations has occurred, it will raise no
objection to and will not otherwise contest or oppose (a) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of Senior Obligations made by any Senior Representative or any other
Senior Secured Party; (b) any exercise by any Senior Secured Party of the right to credit bid Senior Obligations at any sale in foreclosure of Senior Collateral in any Insolvency or Liquidation Proceeding or otherwise under Section 363(k)
of the Bankruptcy Code or any similar provision of any other Bankruptcy Law; (c) any other request for judicial relief made in any court by any Senior Secured Party relating to the lawful enforcement of any Lien on Senior Collateral; or
(d) any election made by any Senior Representative or any other Senior Secured Party of the application of Section 1111(b) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared
Collateral, or (e) any sale or other disposition (including pursuant to Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law) of assets or property of any Grantor to which any Senior Representative has
consented or not objected that provides, to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the Senior Obligations and the Junior Priority Debt Obligations will attach to the proceeds of the sale
or other disposition on the same basis of priority as the Liens on the Shared Collateral securing the Senior Obligations rank to the Liens on the Shared Collateral securing the Junior Priority Debt Obligations pursuant to this Agreement;
provided, that the Junior Priority Representative, for itself and on behalf of the Junior Priority Debt Parties, reserves the right to raise any objection that could be raised by an unsecured creditor of the Grantors to such proposed bidding
procedures prior to approval of such procedures by the Bankruptcy Court; provided, however, that the Junior Priority Debt Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such disposition
in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the Senior Obligations. Each Junior
Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that notice received two Business Days prior to the entry of an order approving such usage of cash or other
collateral or approving such financing shall be adequate notice.
SECTION 6.02. Relief from the Automatic Stay. Until the Discharge
of Senior Obligations has occurred, each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that none of them shall seek relief from the automatic stay or any
other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof, in each case in respect of any Shared Collateral, without the prior written consent of the Designated Senior Representative.
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SECTION 6.03. Adequate Protection. Each Junior Priority Representative, for itself
and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that none of them shall (A) object, contest or support any other Person objecting to or contesting (a) any request by any Senior
Representative or any Senior Secured Parties for adequate protection, (b) any objection by any Senior Representative or any Senior Secured Parties to any motion, relief, action or proceeding based on any Senior Representative’s or Senior
Secured Party’s claiming a lack of adequate protection or (c) the allowance and/or payment of interest, fees, expenses or other amounts of any Senior Representative or any other Senior Secured Party under Section 506(b) of the
Bankruptcy Code or any similar provision of any other Bankruptcy Law or (B) assert or support any claim for costs or expenses of preserving or disposing of any Collateral under Section 506(c) of the Bankruptcy Code or any similar provision
of any other Bankruptcy Law. Notwithstanding anything contained in this Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (i) if the Senior Secured Parties (or any subset thereof) are granted adequate
protection in the form of a Lien on additional or replacement collateral and/or a superpriority claim in connection with any DIP Financing or use of cash collateral under Section 363 or 364 of the Bankruptcy Code or any similar provision of any
other Bankruptcy Law, then each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, may seek or request adequate protection in the form of a Lien on such additional or
replacement collateral and/or superpriority claim (as applicable), which (A) Lien is subordinated to the Liens securing and providing adequate protection for all Senior Obligations and such DIP Financing (and all obligations relating thereto)
on the same basis as the other Liens securing the Junior Priority Debt Obligations are so subordinated to the Liens securing Senior Obligations under this Agreement and (B) superpriority claim is subordinated to all superpriority claims of the
Senior Secured Parties on the same basis as the other claims of the Junior Priority Debt Parties are so subordinated to the claims of the Senior Secured Parties under this Agreement, (ii) in the event any Junior Priority Representatives, for
themselves and on behalf of the Junior Priority Debt Parties under their Junior Priority Debt Facilities, seek or request adequate protection and such adequate protection is granted (in each instance, to the extent such grant is otherwise
permissible under the terms and conditions of this Agreement) in the form of a Lien on additional or replacement collateral, then such Junior Priority Representatives, for themselves and on behalf of each Junior Priority Debt Party under their
Junior Priority Debt Facilities, agree that each Senior Representative shall also be granted a senior Lien on such additional or replacement collateral as security and adequate protection for the Senior Obligations and any such DIP Financing and
that any Lien on such additional or replacement collateral securing or providing adequate protection for the Junior Priority Debt Obligations shall be subordinated to the Liens on such collateral securing the Senior Obligations and any such DIP
Financing (and all obligations relating thereto) and any other Liens granted to the Senior Secured Parties as adequate protection on the same basis as the other Liens securing the Junior Priority Debt Obligations are so subordinated to such Liens
securing Senior Obligations under this Agreement (and, to the extent the Senior Secured Parties are not granted such adequate protection in such form, any amounts recovered by or distributed to any Junior Priority Debt Party pursuant to or as a
result of any Lien on such additional or replacement collateral so granted to the Junior Priority Debt Parties shall be subject to Section 4.02 of this Agreement), and (iii) in the event any Junior Priority Representatives, for themselves
and on behalf of the Junior Priority Debt Parties under their Junior Priority Debt Facilities, seek or request adequate protection and such adequate protection is granted (in each instance, to the extent such grant is otherwise permissible under the
terms and conditions of this Agreement) in the form of a superpriority claim, then such Junior Priority Representatives, for themselves and on behalf of each Junior Priority Debt Party under their Junior Priority Debt Facilities, agree that each
Senior Representative shall also be granted adequate protection in the form of a superpriority claim, which superpriority claim shall be senior to the superpriority claim of the Junior Priority Debt Parties (and, to the extent the Senior Secured
Parties are not granted such adequate protection in such form, any amounts recovered by or distributed to any Junior Priority Debt Party pursuant to or as a result of any such superpriority claim so granted to the Junior Priority Debt Parties shall
be subject to Section 4.02 of this Agreement). Notwithstanding anything herein to the contrary, the Junior Priority Representative shall have irrevocably agreed, pursuant to Section 1129(a)(9) of the Bankruptcy Code, on behalf
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of itself and the Junior Priority Debt Parties, in any stipulation or order granting adequate protection of
its junior interest in the Shared Collateral, that such junior super priority claims may be paid under any plan of reorganization in any combination of cash, debt, equity or other property having a value on the effective date of such plan equal to
the allowed amount of such claims. Without limiting the generality of the foregoing, to the extent that the Senior Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses,
and/or other cash payments, then the Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under their Junior Priority Debt Facilities, shall not be prohibited from seeking adequate protection in the form of
payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the Senior Secured Parties to object to the reasonableness of the amounts of fees and expenses or other
cash payments so sought by the Junior Priority Debt Parties.
SECTION 6.04. Preference Issues. If any Senior Secured Party is
required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Borrowers or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of
such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then the
Senior Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Senior
Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby agrees that none of them
shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of
such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.
SECTION 6.05. Separate Grants of Security and Separate Classifications. Each Junior Priority Representative, for itself and on behalf
of each Junior Priority Debt Party under its Junior Priority Debt Facility, acknowledges and agrees that (a) the grants of Liens pursuant to the Senior Collateral Documents and the Junior Priority Collateral Documents constitute separate and
distinct grants of Liens and (b) because of, among other things, their differing rights in the Shared Collateral, the Junior Priority Debt Obligations are fundamentally different from the Senior Obligations and must be separately classified in
any plan of reorganization or similar dispositive restructuring plan proposed, confirmed, or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it
is held that any claims of the Senior Secured Parties and the Junior Priority Debt Parties in respect of the Shared Collateral constitute a single class of claims (rather than separate classes of senior and junior secured claims), then each Junior
Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior
secured claims against the Grantors in respect of the Shared Collateral, with the effect being that, to the extent that the aggregate value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Junior Priority Debt
Parties), the Senior Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees, and expenses
(whether or
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not allowed or allowable) before any distribution is made in respect of the Junior Priority Debt Obligations, and each Junior Priority Representative, for itself and on behalf of each Junior
Priority Debt Party under its Junior Priority Debt Facility, hereby acknowledges and agrees to turn over to the Designated Senior Representative amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of
this sentence, even if such turnover has the effect of reducing the claim or recovery of the Junior Priority Debt Parties.
SECTION 6.06.
No Waivers of Rights of Senior Secured Parties. Nothing contained herein shall, except as expressly provided herein, prohibit or in any way limit any Senior Representative or any other Senior Secured Party from objecting in any Insolvency or
Liquidation Proceeding or otherwise to any action taken by any Junior Priority Debt Party, including the seeking by any Junior Priority Debt Party of adequate protection or the assertion by any Junior Priority Debt Party of any of its rights and
remedies under the Junior Priority Debt Documents or otherwise.
SECTION 6.07. Application. This Agreement, which the parties
hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, shall be effective before, during and after the commencement of any
Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition
therefor, subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor.
SECTION 6.08. Other Matters. To the extent that any Junior Priority Representative or any Junior Priority Debt Party has or acquires
rights under Section 363 or Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, such Junior Priority Representative, on behalf of itself and each Junior
Priority Debt Party under its Junior Priority Debt Facility, or such Junior Priority Debt Party agrees not to assert any such rights without the prior written consent of each Senior Representative, provided that if requested by any Senior
Representative, such Junior Priority Representative shall timely exercise such rights in the manner requested by the Senior Representatives (acting unanimously), including any rights to payments in respect of such rights.
SECTION 6.09. 506(c) Claims. Until the Discharge of Senior Obligations has occurred, each Junior Priority Representative, on behalf of
itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, agrees that it will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to
or on a parity with the Liens securing the Senior Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
SECTION 6.10. Reorganization Securities.
(a) If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the
reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of both the Senior Obligations and the Junior Priority Debt Obligations, then, to the extent the debt obligations
distributed on account of the Senior Obligations and on account of the Junior Priority Debt Obligations are secured by Liens upon the same assets or property, the provisions of this Agreement will survive the distribution of such debt obligations
pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
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(b) No Junior Priority Debt Party (whether in the capacity of a secured creditor or an
unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any plan of reorganization or similar dispositive restructuring plan that violates the payment priorities set forth in Section 4.01 of this
Agreement or is otherwise inconsistent with the terms of this Agreement other than with the prior written consent of the Designated Senior Representative or to the extent any such plan is proposed or supported by the number of
Senior Secured Parties required under Section 1126(c) of the Bankruptcy Code.
(c) Any Junior Priority Debt Parties may bid
for or purchase Shared Collateral at any public, private or judicial foreclosure upon such Shared Collateral initiated by any Senior Secured Party or any other person, or any sale of Shared Collateral during an Insolvency or Liquidation Proceeding
so long as such credit bid provides for the payment in full in cash of the Senior Obligations.
SECTION 6.11. Section 1111(b) of
the Bankruptcy Code. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt Facility, shall not object to, oppose, support any objection, or take any other action to
impede, the right of any Senior Secured Party to make an election under Section 1111(b)(2) of the Bankruptcy Code. Each Junior Priority Representative, for itself and on behalf of each Junior Priority Debt Party under its Junior Priority Debt
Facility, waives any claim it may hereafter have against any senior claimholder arising out of the election by any Senior Secured Party of the application of Section 1111(b)(2) of the Bankruptcy Code.
SECTION 6.12. Post-Petition Interest.
(a) None of the Junior Priority Representatives or any other Junior Priority Debt Party shall oppose or seek to challenge any claim by any
Senior Representative or any other Senior Class Debt Party for allowance in any Insolvency or Liquidation Proceeding of Senior Obligations of claims for post-petition interest, fees or expenses, under Section 506(b) of the Bankruptcy Code or
otherwise (for this purpose ignoring all claims held by the Junior Priority Debt Parties).
(b) None of the Senior Representatives or any
other Senior Class Debt Party shall oppose or seek to challenge any claim by the Junior Priority Representative or any other Junior Priority Debt Party for allowance in any Insolvency or Liquidation Proceeding of Junior Priority Debt Obligations
consisting of claims for post-petition interest, fees or expenses, under Section 506(b) of the Bankruptcy Code or otherwise, so long as the Senior Secured Parties are receiving post-petition interest, fees, or expenses in at least the same form
being requested by such Junior Priority Representative or such other Junior Priority Debt Party and then only to the extent of the value of the Lien of the Junior Priority Representative on behalf of the Junior Priority Debt Parties on the Shared
Collateral (after taking into account the Senior Obligations).
ARTICLE VII
Reliance; Etc.
SECTION
7.01. Reliance. All loans and other extensions of credit made or deemed made on and after the date hereof by the Senior Secured Parties to the Borrowers or any Subsidiary shall be deemed to have been given and made in reliance upon this
Agreement. Each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, acknowledges that it and such Junior Priority Debt Parties have,
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independently and without reliance on any Senior Representative or other Senior Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis
and decision to enter into the Junior Priority Debt Documents to which they are party or by which they are bound, this Agreement and the transactions contemplated hereby and thereby, and they will continue to make their own credit decisions in
taking or not taking any action under the Junior Priority Debt Documents or this Agreement.
SECTION 7.02. No Warranties or
Liability. Each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, acknowledges and agrees that neither any Senior Representative nor any other Senior Secured Party
has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Senior Debt Documents, the ownership of any Shared Collateral or
the perfection or priority of any Liens thereon. The Senior Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the Senior Debt Documents in accordance with law and as they may otherwise, in
their sole discretion, deem appropriate, and the Senior Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Junior Priority Representatives and the Junior Priority Debt Parties have in
the Shared Collateral or otherwise, except as otherwise provided in this Agreement. Neither any Senior Representative nor any other Senior Secured Party shall have any duty to any Junior Priority Representative or Junior Priority Debt Party to act
or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreement with the Parent Borrower or any Subsidiary (including the Junior Priority Debt Documents), regardless
of any knowledge thereof that they may have or be charged with. Except as expressly set forth in this Agreement, the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties have
not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectability of any of the
Senior Obligations, the Junior Priority Debt Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right to transfer any of the Shared Collateral or
(c) any other matter except as expressly set forth in this Agreement.
SECTION 7.03. Obligations Unconditional. All rights,
interests, agreements and obligations of the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Senior Debt Document or any Junior Priority Debt Document;
(b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the Senior Obligations or
Junior Priority Debt Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the Senior Debt Documents or of the terms of the Initial
Junior Lien Agreement or any other Junior Priority Debt Document;
(c) any exchange of any security interest in any Shared
Collateral or any other collateral or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Senior Obligations or Junior Priority Debt Obligations or any guarantee thereof;
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(d) the commencement of any Insolvency or Liquidation Proceeding in respect
of any Borrower or any other Grantor; or
(e) any other circumstances that otherwise might constitute a defense available
to (i) any Borrower or any other Grantor in respect of the Senior Obligations (other than the Discharge of Senior Obligations subject to Sections 5.06 and 6.04 of this Agreement) or (ii) any Junior Priority Representative or Junior
Priority Debt Party in respect of this Agreement.
ARTICLE VIII
Miscellaneous
SECTION
8.01. Conflicts.
(a) In the event of any conflict between the provisions of this Agreement and the provisions of any Senior Debt
Document or any Junior Priority Debt Document, the provisions of this Agreement shall govern. Notwithstanding the foregoing, (a) the relative rights and obligations of the Senior Representatives and the Senior Secured Parties (as amongst
themselves) with respect to any Senior Collateral shall be governed by the terms of the Applicable Intercreditor Agreement among such parties and in the event of any conflict between such Applicable Intercreditor Agreement and this Agreement as to
such relative rights and obligations, the provisions of such Applicable Intercreditor Agreement shall control solely with respect to such rights and obligations and (b) the relative rights and obligations of the Junior Priority Representatives
and the Junior Priority Debt Parties (solely as amongst themselves) with respect to any Junior Priority Collateral shall be governed by the terms of any Applicable Intercreditor Agreement and in the event of any conflict between any Applicable
Intercreditor Agreement and this Agreement, the provisions of such Applicable Intercreditor Agreement shall control solely with respect to such rights and obligations.
SECTION 8.02. Continuing Nature of this Agreement; Severability. Subject to Section 6.04 of this Agreement, this Agreement shall
continue to be effective until the Discharge of Senior Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the Senior Secured Parties may continue, at any time and without notice to the Junior Priority
Representatives or any Junior Priority Debt Party, to extend credit and other financial accommodations and lend monies to or for the benefit of any Borrower or any Subsidiary constituting Senior Obligations in reliance hereon. The terms of this
Agreement shall survive and continue in full force and effect in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8.03. Amendments; Waivers.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
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The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) This Agreement may be amended in writing signed by each Representative (in each case, acting in accordance with the documents governing
the applicable Debt Facility); provided that any such amendment, supplement or waiver which by the terms of this Agreement requires the Parent Borrower’s consent or which increases the obligations or reduces the rights of, or otherwise
materially adversely affects, any Borrower or any Grantor, shall require the consent of the Parent Borrower. Any such amendment, supplement or waiver shall be in writing and shall be binding upon the Senior Secured Parties and the Junior Priority
Debt Parties and their respective successors and assigns.
(c) Notwithstanding the foregoing, without the consent of any Secured Party
(and with respect to any amendment or modification which by the terms of this Agreement requires the Parent Borrower’s consent or which increases the obligations or reduces the rights of the any Borrower or any other Grantor, with the consent
of the Parent Borrower), any Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 8.09 of this Agreement and upon such execution and delivery, such Representative and the Secured
Parties and Senior Obligations or Junior Priority Debt Obligations of the Debt Facility for which such Representative is acting shall be subject to the terms hereof.
SECTION 8.04. Information Concerning Financial Condition of the Parent Borrower and the Subsidiaries. The Senior Representatives, the
Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties shall each be responsible for keeping themselves informed of (a) the financial condition of the Parent Borrower and the Subsidiaries and all
endorsers or guarantors of the Senior Obligations or the Junior Priority Debt Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the Senior Obligations or the Junior Priority Debt Obligations. The Senior
Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such
circumstances or otherwise. In the event that any Senior Representative, any Senior Secured Party, any Junior Priority Representative or any Junior Priority Debt Party, in its sole discretion, undertakes at any time or from time to time to provide
any such information to any other party, it shall be under no obligation to (i) make, and the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties shall not make or be
deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional information or to provide
any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is
otherwise required to maintain confidential.
SECTION 8.05. Subrogation. Each Junior Priority Representative, on behalf of itself
and each Junior Priority Debt Party under its Junior Priority Debt Facility, hereby agrees not to assert any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Senior Obligations has occurred.
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SECTION 8.06. Application of Payments. Except as otherwise provided herein, all
payments received by the Senior Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the Senior Obligations as the Senior Secured Parties, in their sole discretion, deem appropriate, consistent with the terms
of the Senior Debt Documents. Except as otherwise provided herein, each Junior Priority Representative, on behalf of itself and each Junior Priority Debt Party under its Junior Priority Debt Facility, assents to any such extension or postponement of
the time of payment of the Senior Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the Senior Obligations and to the
addition or release of any other Person primarily or secondarily liable therefor.
SECTION 8.07. Additional Grantors. The Parent
Borrower agrees that, if any Subsidiary shall become a Grantor after the date hereof, it will promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Annex I. Upon such execution and delivery,
such Subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be
acknowledged by the Designated Junior Priority Representative and the Designated Senior Representative. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a
party to this Agreement.
SECTION 8.08. Dealings with Grantors. Upon any application or demand by any Borrower or any Grantor to
any Representative to take or permit any action under any of the provisions of this Agreement or under any Collateral Document (if such action is subject to the provisions hereof), at the request of such Representative, such Borrower or Grantor, as
appropriate, shall furnish to such Representative a certificate of an Authorized Officer (an “Officer’s Certificate”) stating that all conditions precedent, if any, provided for in this Agreement or such Collateral Document,
as the case may be, relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Agreement or any
Collateral Document relating to such particular application or demand, no additional certificate or opinion need be furnished.
SECTION
8.09. Additional Debt Facilities. To the extent, but only to the extent, permitted by the provisions of the then extant Senior Debt Documents and Junior Priority Debt Documents, the Borrowers may incur or issue and sell one or more series or
classes of Additional Junior Priority Debt and one or more series or classes of Additional Senior Debt. Any such additional class or series of Junior Priority Debt (the “Junior Priority Class Debt”) may be secured by a junior
priority, subordinated Lien on Shared Collateral, in each case under and pursuant to the relevant Junior Priority Collateral Documents for such Junior Priority Class Debt, if and subject to the condition that the Representative of any such Junior
Priority Class Debt (each, a “Junior Priority Class Debt Representative”), acting on behalf of the holders of such Junior Priority Class Debt (such Representative and holders in respect of any Junior Priority Class Debt being
referred to as the “Junior Priority Class Debt Parties”), becomes a party to this Agreement by satisfying conditions (A) through (C), as applicable, of the immediately succeeding paragraph. Any such additional class or series
of Senior Facilities (the “Senior Class Debt”; and the Senior Class Debt and Junior Priority Class Debt, collectively, the “Class Debt”) may be secured by a senior Lien on Shared Collateral, in each case under
and pursuant to the relevant Senior Collateral Documents, if and subject to the condition that the Representative of any such Senior Class Debt (each, a “Senior Class Debt Representative”; and the Senior Class Debt Representatives
and Junior Priority Class Debt Representatives, collectively, the “Class Debt Representatives”), acting on behalf of the
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holders of such Senior Class Debt (such Representative and holders in respect of any such Senior Class Debt being referred to as the “Senior Class Debt Parties”; and the Senior
Class Debt Parties and Junior Priority Class Debt Parties, collectively, the “Class Debt Parties”), becomes a party to (x) an Applicable Intercreditor Agreement pursuant to Article VIII and (y) this Agreement by
satisfying the conditions set forth in clauses (A) through (C), as applicable, of the immediately succeeding paragraph. In order for a Class Debt Representative to become a party to this Agreement:
(A) such Class Debt Representative shall have executed and delivered a Joinder Agreement substantially in the form of Annex II
(if such Representative is a Junior Priority Class Debt Representative) or Annex III (if such Representative is a Senior Class Debt Representative) pursuant to which it becomes a Representative hereunder, and the Class Debt in respect of which such
Class Debt Representative is the Representative constitutes Additional Senior Debt Obligations or Additional Junior Priority Debt Obligations, as applicable, and the related Class Debt Parties become subject hereto and bound hereby as Additional
Senior Debt Parties or Additional Junior Priority Debt Parties, as applicable;
(B) the Parent Borrower (a) shall have
delivered to the Designated Senior Representative an Officer’s Certificate identifying the obligations to be designated as Additional Senior Debt Obligations or Additional Junior Priority Debt Obligations, as applicable, and the initial
aggregate principal amount or face amount thereof and certifying that such obligations are permitted to be incurred and secured (I) in the case of Additional Senior Debt Obligations, on a senior basis under each of the Senior Debt Documents and
(II) in the case of Additional Junior Priority Debt Obligations, on a junior basis under each of the Junior Priority Debt Documents and (b) if requested, shall have delivered true and complete copies of each of the Junior Priority Debt
Documents or Senior Debt Documents, as applicable, relating to such Class Debt, certified as being true and correct by an authorized officer of the Parent Borrower; and
(C) the Junior Priority Debt Documents or Senior Debt Documents, as applicable, relating to such Class Debt shall provide that
each Class Debt Party with respect to such Class Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Class Debt.
SECTION 8.10. Refinancings. The Senior Obligations and the Junior Priority Debt may be increased, exchanged, refinanced or replaced, in
whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the refinancing transaction under any Senior Debt Document or any Junior Priority Debt Document) of any Senior
Representative or any Secured Party, all without affecting the Lien priorities provided for herein or the other provisions hereof, so long as permitted by the terms of each Senior Debt Document and Junior Priority Debt Document. Each Junior Priority
Representative hereby agrees that at the request of the Parent Borrower in connection with refinancing or replacement of Senior Obligations (“Replacement Senior Obligations”) it will enter into an agreement in form and substance
reasonably acceptable to the Junior Priority Representative with the agent for the Replacement Senior Obligations containing terms and conditions substantially similar to the terms and conditions of this Agreement. The Senior Representatives hereby
agree, at the request of the Parent Borrower in connection with Refinancing or replacement of Junior Priority Debt Obligations (“Replacement Junior Priority Obligations”), to enter into an agreement in form and substance
reasonably acceptable to the Senior Representatives with the agent for the Replacement Junior Priority Obligations containing terms and conditions substantially similar to the terms and conditions of this Agreement.
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SECTION 8.11. Consent to Jurisdiction; Waivers. Each Representative, on behalf of
itself and the Secured Parties of the Debt Facility for which it is acting, irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this Agreement and the Collateral Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of
New York or the United States of America located in the Borough of Manhattan, City of New York, and appellate courts from any thereof;
(b) consents and agrees that any such action or proceeding shall be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same and agrees not to commence or support any such
action or proceeding in any other jurisdiction;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Representative) at the address referred to in Section 8.12;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any Secured Party) to effect service of
process in any other manner permitted by law; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in this Section 8.11 any special, exemplary, punitive or consequential damages.
SECTION 8.12. Notices. All notices, requests, demands and other communications provided for or permitted hereunder shall be in writing
and shall be sent:
(A) if to the Borrowers or any Grantor, to the Parent Borrower, at its address at:
Accendra Health, Inc.
435 Waterfront Drive, Suite 300
Glen Allen, Virginia 23060
Attention: Jonathan A. Leon, Executive Vice President & Chief Financial
Officer; Heath H. Galloway, Executive Vice President, General Counsel &
Corporate Secretary
Email: [***]
and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
333 West Wolf Point Plaza
Chicago, IL 60654
Attention: Thomas J. Dobleman, P.C.
Email: thomas.dobleman@kirkland.com
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and a copy to (which shall not constitute notice):
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Paul L. Sandler, P.C.
Email: paul.sandler@kirkland.com
(B) if to the RCF Collateral Agent, to it at:
Bank of America, N.A.
Agency Management
4500 Amon Carter Blvd.
Mail Code: TX2-979-02-22
Fort Worth, TX 76155
Attention: Jennifer Toney, Katie Pounds and Darren Merten
Telephone: (469) 201-9415
Facsimile: (214) 209-9581
Email: jennifer.toney@bofa.com; kathryn.pounds@bofa.com;
darren.merten@bofa.com
(C) if to the TLB Collateral Agent, to it at:
JPMorgan Chase Bank, N.A.
WLS - Document Workflow Management
10 South Dearborn Street - Floor L2
Mail Code IL1-1190
Chicago, IL 60603
(D) if to the First Lien Notes Collateral Agent, to it at:
Regions Bank
1180 West Peachtree Street NW, Suite 1400
Atlanta, GA 30309
Attention: Corporate Trust Department
(E) if to the Initial Junior Lien Collateral Agent, to it at:
Regions Bank 1180
West Peachtree Street NW, Suite 1400
Atlanta, GA 30309
Attention: Corporate Trust Department
(F) if to any other Representative, to it at the address specified by it in the Joinder Agreement delivered by it pursuant to
Section 8.09.
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Unless otherwise specifically provided herein, any notice or other communication herein required or
permitted to be given shall be in writing and, may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of
a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth above or, as to each party, at
such other address as may be designated by such party in a written notice to all of the other parties.
SECTION 8.13. Further
Assurances. Each Senior Representative, on behalf of itself and each Senior Secured Party under the Senior Facility for which it is acting, each Junior Priority Representative, on behalf of itself, and each Junior Priority Debt Party under its
Junior Priority Debt Facility, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate
the terms of, and the Lien priorities contemplated by, this Agreement.
SECTION 8.14. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 8.15. Binding on Successors and Assigns. This Agreement shall be binding upon the Senior Representatives, the Senior Secured
Parties, the Junior Priority Representatives, the Junior Priority Debt Parties, the Borrowers, the other Grantors which have acknowledged this Agreement and their respective successors and assigns.
SECTION 8.16. Section Titles. The section titles contained in this Agreement are and shall be without substantive meaning or content of
any kind whatsoever and are not a part of this Agreement.
SECTION 8.17. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission or other electronic communication
(including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of similar
import in this Agreement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same
effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National
Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
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SECTION 8.18. Authorization. By its signature, each Person executing this Agreement
on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.
SECTION 8.19. No Third-Party Beneficiaries; Successors and Assigns. The lien priorities set forth in this Agreement and the rights and
benefits hereunder in respect of such lien priorities shall inure solely to the benefit of the Senior Representatives, the Senior Secured Parties, the Junior Priority Representatives and the Junior Priority Debt Parties, and their respective
permitted successors and assigns, and no other Person (including the Grantors, or any trustee, receiver, debtor in possession or bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled to assert such rights. Nothing in this
Agreement is intended to or shall impair the obligations of the any Borrower or any other Grantor, which are absolute and unconditional, to pay the Senior Obligations and the Junior Priority Debt Obligations as and when the same shall become due and
payable in accordance with their terms.
SECTION 8.20. Effectiveness. This Agreement shall become effective when executed and
delivered by the parties hereto.
SECTION 8.21. Collateral Agent and Representative. It is understood and agreed that (a) the
RCF Collateral Agent is entering into this Agreement in its capacity as administrative agent and collateral agent under the RCF Credit Agreement and the provisions of Article IX of the RCF Credit Agreement applicable to the Agents (as defined
therein) thereunder shall also apply to the RCF Collateral Agent hereunder, (b) the TLB Collateral Agent is entering into this Agreement in its capacity as administrative agent and collateral agent under the TLB Credit Agreement and the
provisions of Article IX of the TLB Credit Agreement applicable to the Agents (as defined therein) thereunder shall also apply to the TLB Collateral Agent hereunder, (c) the First Lien Notes Collateral Agent is entering into this Agreement in
its capacity as notes collateral agent under the First Lien Notes Indenture and the provisions of Articles VII and XII of the First Lien Notes Indenture applicable to the Trustee or Notes Collateral Agent (each, as defined therein), as applicable,
thereunder shall also apply to the First Lien Notes Collateral Agent hereunder and (d) the Initial Junior Lien Collateral Agent is entering into this Agreement in its capacity as notes collateral agent under the Initial Junior Lien Agreement
and the provisions of Articles VII and XII of the Initial Junior Lien Agreement applicable to the Trustee or Notes Collateral Agent (each, as defined therein), as applicable, thereunder shall also apply to the Initial Junior Lien Collateral Agent
hereunder.
SECTION 8.22. Relative Rights. Notwithstanding anything in this Agreement to the contrary (except to the extent
contemplated by Sections 5.01(a), 5.01(d) or 5.03(d)), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of any Senior Debt Document, the Initial Junior Lien Agreement or any other Junior
Priority Debt Documents, (b) change the relative priorities of the Senior Obligations or the Liens granted under the Senior Collateral Documents on the Shared Collateral (or any other assets or property) as among the Senior Secured Parties,
(c) otherwise change the relative rights of the Senior Secured Parties in respect of the Shared Collateral as among such Senior Secured Parties or (d) obligate any Borrower or any Grantor to take any action, or fail to take any action,
that would otherwise constitute a breach of, or default under any Senior Debt Document, the Initial Junior Lien Agreement or any other Junior Priority Debt Document.
SECTION 8.23. Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement
shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
REGIONS BANK, in its capacity as First Lien Notes Collateral Agent
By:
Name:
Title:
BANK OF AMERICA, N.A., in its capacity as RCF Collateral Agent
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A., in its capacity as TLB Collateral Agent
By:
Name:
Title:
REGIONS BANK, in its capacity as Initial Junior Lien Collateral Agent
By:
Name:
Title:
40
ACKNOWLEDGED AND AGREED:
ACCENDRA HEALTH, INC.,
as the Parent Borrower
By:
Name: Heath H. Galloway
Title: Executive Vice President
APRIA, INC.,
BARISTA
ACQUISITION I, LLC,
BARISTA ACQUISITION II, LLC,
each as a Borrower
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name: Michelle Knowles
Title: Secretary
[Signature Page to Junior
Lien Intercreditor Agreement]
O&M BYRAM HOLDINGS, GP, as a Grantor
By:
Barista Acquisition I, LLC; and
Barista
Acquisition II, LLC
Its:
Partners
By:
Name: Heath H. Galloway
Title: Executive Vice President
BYRAM HOLDINGS I, INC., as a Grantor
By:
Name: Michelle Knowles
Title: Secretary
APRIA HOLDCO LLC,
APRIA HEALTHCARE GROUP LLC,
APRIA HEALTHCARE LLC,
CPAP SLEEP STORE LLC,
HEALTHY LIVING HOME MEDICAL LLC,
LOFTA, each as a Grantor
By:
Name: Heath H. Galloway
Title: Executive Vice President
[Signature Page to Junior
Lien Intercreditor Agreement]
ANNEX I
SUPPLEMENT NO. [ ] dated as of , to the INTERCREDITOR AGREEMENT dated as of [ ] (the
“Intercreditor Agreement”), among [ ], as RCF Collateral Agent, [ ], as TLB Collateral Agent, [ ], as First Lien Notes
Collateral Agent, [ ], as Initial Junior Lien Collateral Agent under the Initial Junior Lien Agreement, the other parties thereto and the additional Representatives from time to time party thereto, and acknowledged
and agreed by ACCENDRA HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia
limited liability company (“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower,
Barista I, Barista II and Apria, the “Borrowers”), and the other Grantors party thereto.
A. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. The Grantors
have entered into the Intercreditor Agreement. Pursuant to the RCF Credit Agreement, the TLB Credit Agreement, the First Lien Notes Indenture, the Initial Junior Lien Agreement, certain Additional Senior Debt Documents and certain Additional Junior
Priority Debt Documents, certain newly acquired or organized Subsidiaries of the Parent Borrower are required to enter into the Intercreditor Agreement. Section 8.07 of the Intercreditor Agreement provides that such Subsidiaries may become
party to the Intercreditor Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Grantor”) is executing this Supplement in accordance with the requirements of the
RCF Credit Agreement, the TLB Credit Agreement, the First Lien Notes Indenture, the Initial Junior Lien Agreement, the Additional Junior Priority Debt Documents and Additional Senior Debt Documents.
Accordingly, the Designated Senior Representative and the New Grantor agree as follows:
SECTION 1. In accordance with Section 8.07 of the Intercreditor Agreement, the New Grantor by its signature below becomes a Grantor under
the Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor, and the New Grantor hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Grantor thereunder. Each
reference to a “Grantor” in the Intercreditor Agreement shall be deemed to include the New Grantor. The Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Designated Senior Representative and the other Secured Parties that this Supplement
has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by Bankruptcy Laws and by general
principles of equity.
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original but all of
which when taken together shall constitute a single contract. This Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Supplement that bears the signature of the New Grantor. Delivery
of an executed signature page to this Supplement by facsimile transmission or other electronic
43
communication (including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Supplement. The words “execution,”
“signed,” “signature,” and words of similar import in this Supplement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping
of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law,
including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
SECTION 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in
the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices
hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the Parent Borrower as specified in the
Intercreditor Agreement.
SECTION 8. The Borrowers agree to reimburse the Designated Senior Representative for its reasonable
out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative as required by the applicable Senior Debt Documents.
44
IN WITNESS WHEREOF, the New Grantor, and the Designated Senior Representative have duly
executed this Supplement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW SUBSIDIARY GRANTOR]
By:
Name:
Title:
Acknowledged by:
[ ], as Designated Senior Representative
By:
Name:
Title:
[ ], as Designated Junior Priority Representative
By:
Name:
Title:
45
ANNEX II
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of , to the INTERCREDITOR AGREEMENT dated as of [ ] (the
“Intercreditor Agreement”), among [ ], as RCF Collateral Agent, [ ], as TLB Collateral Agent, [ ], as First Lien Notes Collateral Agent,
[ ], as Initial Junior Lien Collateral Agent under the Initial Junior Lien Agreement, the other parties thereto and the additional Representatives from time to time party thereto, and acknowledged and agreed by ACCENDRA
HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company
(“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and
Apria, the “Borrowers”), and the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. As a condition to the ability of the
Borrowers to incur Junior Priority Class Debt after the date of the Intercreditor Agreement and to secure such Junior Priority Class Debt with the Junior Priority Lien and to have such Junior Priority Class Debt guaranteed by the Grantors, in each
case under and pursuant to the Junior Priority Collateral Documents relating thereto, the Junior Priority Class Debt Representative in respect of such Junior Priority Class Debt is required to become a Representative under, and such Junior Priority
Class Debt and the Junior Priority Class Debt Parties in respect thereof are required to become subject to and bound by, the Intercreditor Agreement. Section 8.09 of the Intercreditor Agreement provides that such Junior Priority Class Debt
Representative may become a Representative under, and such Junior Priority Class Debt and such Junior Priority Class Debt Parties may become subject to and bound by, the Intercreditor Agreement as Additional Junior Priority Debt Obligations and
Additional Junior Priority Debt Parties, respectively, pursuant to the execution and delivery by the Junior Priority Class Debt Representative of an instrument in the form of this Representative Supplement and the satisfaction of the other
conditions set forth in Section 8.09 of the Intercreditor Agreement. The undersigned Junior Priority Class Debt Representative (the “New Representative”) is executing this Supplement in accordance with the requirements of the
Senior Debt Documents and the Junior Priority Debt Documents.
Accordingly, the Designated Senior Representative and the New
Representative agree as follows:
SECTION 1. In accordance with Section 8.09 of the Intercreditor Agreement, the New Representative by
its signature below becomes a Representative under, and the related Junior Priority Class Debt and Junior Priority Class Debt Parties become subject to and bound by, the Intercreditor Agreement as Additional Junior Priority Debt Obligations and
Additional Junior Priority Debt Parties, respectively, with the same force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on behalf of itself and such Junior Priority Class
Debt Parties, hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Junior Priority Representative and to the Junior Priority Class Debt Parties that it represents as Junior Priority Debt Parties. Each
reference to a “Representative” or “Junior Priority Representative” in the Intercreditor Agreement shall be deemed to include the New Representative. The Intercreditor Agreement is hereby incorporated herein by
reference.
46
SECTION 2. The New Representative represents and warrants to the Designated Senior
Representative and the other Secured Parties that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee] under [describe new facility], (ii) this Representative Supplement has
been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Junior Priority Debt Documents relating to such
Junior Priority Class Debt in respect of which the New Representative is the Junior Priority Class Debt Representative provide that, upon the New Representative’s entry into this Agreement, the Junior Priority Class Debt Parties in respect of
such Junior Priority Class Debt will be subject to and bound by the provisions of the Intercreditor Agreement as Junior Priority Debt Parties.
SECTION 3. This Representative Supplement may be executed in counterparts, each of which shall constitute an original but all of which when
taken together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Representative shall have received a counterpart of this Representative Supplement that bears the signature of the
New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile transmission or other electronic communication (including “.pdf” or “.tif” files) shall be as effective as delivery of
a manually signed counterpart of this Representative Supplement. The words “execution,” “signed,” “signature,” and words of similar import in this Representative Supplement or any notice, certificate, document,
agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed
signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act
of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
SECTION 4. Except as expressly supplemented
hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions
contained in this Representative Supplement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor
Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its signature hereto.
47
SECTION 8. The Borrowers agree to reimburse the Designated Senior Representative for its
reasonable out-of-pocket expenses in connection with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative as required by the applicable Senior Debt
Documents.
48
IN WITNESS WHEREOF, the New Representative and the Designated Senior Representative have
duly executed this Representative Supplement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW REPRESENTATIVE],
as
[ ] for the holders of [ ]
By:
Name:
Title:
Address for notices:
Attention of:
Telecopy:
[ ],
as Designated Senior Representative
By:
Name:
Title:
49
Acknowledged by:
ACCENDRA HEALTH, INC.
as the Parent Borrower
By:
Name:
Title:
APRIA, INC.,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
as a Borrower
By:
Name:
Title:
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Title:
50
[EACH SUBSIDIARY GUARANTOR]
, as a Grantor
By:
Name:
Title:
51
ANNEX III
[FORM OF] REPRESENTATIVE SUPPLEMENT NO. [ ] dated as of , to the INTERCREDITOR AGREEMENT dated as of [ ] (the
“Intercreditor Agreement”), among [ ], as RCF Collateral Agent, [ ], as TLB Collateral Agent, [ ], as First Lien Notes Collateral Agent,
[ ], as Initial Junior Lien Collateral Agent under the Initial Junior Lien Agreement, the other parties thereto and the additional Representatives from time to time party thereto, and acknowledged and agreed by ACCENDRA
HEALTH, INC., a Virginia corporation (the “Parent Borrower”), BARISTA ACQUISITION I, LLC, a Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited liability company
(“Barista II”), APRIA, INC., a Delaware corporation (“Apria”), BYRAM HEALTHCARE CENTERS, INC., a New Jersey corporation, (“Byram”, and together with Parent Borrower, Barista I, Barista II and
Apria, the “Borrowers”), and the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. As a condition to the ability of the
Borrowers to incur Senior Class Debt after the date of the Intercreditor Agreement and to secure such Senior Class Debt with the Senior Lien and to have such Senior Class Debt guaranteed by the Grantors on a senior basis, in each case under and
pursuant to the Senior Collateral Documents relating thereto, the Senior Class Debt Representative in respect of such Senior Class Debt is required to become a Representative under, and such Senior Class Debt and the Senior Class Debt Parties in
respect thereof are required to become subject to and bound by, the Intercreditor Agreement. Section 8.09 of the Intercreditor Agreement provides that such Senior Class Debt Representative may become a Representative under, and such Senior
Class Debt and such Senior Class Debt Parties may become subject to and bound by, the Intercreditor Agreement as Additional Senior Debt Obligations and Additional Senior Debt Parties, respectively, pursuant to the execution and delivery by the
Senior Class Debt Representative of an instrument in the form of this Representative Supplement and the satisfaction of the other conditions set forth in Section 8.09 of the Intercreditor Agreement. The undersigned Senior Class Debt
Representative (the “New Representative”) is executing this Supplement in accordance with the requirements of the Senior Debt Documents and the Junior Priority Debt Documents.
Accordingly, the New Representative agrees as follows:
SECTION 1. In accordance with Section 8.09 of the Intercreditor Agreement, the New Representative by its signature below becomes a
Representative under, and the related Senior Class Debt and Senior Class Debt Parties become subject to and bound by, the Intercreditor Agreement as Additional Senior Debt Obligations and Additional Senior Debt Parties, respectively, with the same
force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on behalf of itself and such Senior Class Debt Parties, hereby agrees to all the terms and provisions of the
Intercreditor Agreement applicable to it as a Senior Representative and to the Senior Class Debt Parties that it represents as Senior Class Debt Parties. Each reference to a “Representative” or “Senior
Representative” in the Intercreditor Agreement shall be deemed to include the New Representative. The Intercreditor Agreement is hereby incorporated herein by reference.
52
SECTION 2. The New Representative represents and warrants to the Designated Senior
Representative and the other Secured Parties that (i) it has full power and authority to enter into this Representative Supplement, in its capacity as [agent] [trustee] under [describe new facility], (ii) this Representative Supplement has
been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of such Agreement and (iii) the Senior Debt Documents relating to such Senior Class
Debt in respect of which the New Representative is the Senior Class Debt Representative provide that, upon the New Representative’s entry into this Agreement, the Senior Class Debt Parties in respect of such Senior Class Debt will be subject
to and bound by the provisions of the Intercreditor Agreement as Senior Secured Parties.
SECTION 3. This Representative Supplement may be
executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. This Representative Supplement shall become effective when the Designated Senior Representative shall have
received a counterpart of this Representative Supplement that bears the signature of the New Representative. Delivery of an executed signature page to this Representative Supplement by facsimile transmission or other electronic communication
(including “.pdf” or “.tif” files) shall be as effective as delivery of a manually signed counterpart of this Representative Supplement. The words “execution,” “signed,” “signature,” and
words of similar import in this Representative Supplement or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each
of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures
in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
SECTION 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS REPRESENTATIVE SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Representative Supplement should be held invalid, illegal or
unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions
contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All
communications and notices hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth
below its signature hereto.
53
SECTION 8. The Borrowers agree to reimburse the Designated Senior Representative for its
reasonable out-of-pocket expenses in connection with this Representative Supplement, including the reasonable fees, other charges and disbursements of counsel for the Designated Senior Representative as required by the applicable Senior Debt
Documents.
54
IN WITNESS WHEREOF, the New Representative has duly executed this Representative Supplement
to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW REPRESENTATIVE],
as
[ ] for the holders of [ ]
By:
Name:
Title:
Address for notices:
Attention of:
Telecopy:
55
Acknowledged by:
ACCENDRA HEALTH, INC.
as the Parent Borrower
By:
Name:
Title:
APRIA, INC.,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
as a Borrower
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
as a Borrower
By:
Name:
Title:
BYRAM HEALTHCARE CENTERS, INC.,
as a Borrower
By:
Name:
Title:
56
[EACH SUBSIDIARY GUARANTOR],
as a Grantor
By:
Name:
Title:
57
EX-99.1
EX-99.1
Filename: d100115dex991.htm · Sequence: 8
EX-99.1
Exhibit 99.1
Accendra Health Announces Early Results of Offers and Consent Solicitations
RICHMOND, VA – June 10, 2026 – Accendra Health, Inc. (NYSE: ACH) (the “Company”) today announced the early results of the
previously announced offers to exchange (the “Exchange Offers”) any and all of the Company’s outstanding 4.500% Senior Notes due 2029 (the “2029 Notes”) and 6.625% Senior Notes due 2030 (the “2030 Notes”
and, together with the 2029 Notes, the “Existing Notes”). Eligible Holders of 2029 Notes that participate in the New Money Notes Issuance (as defined below) will be able to exchange such 2029 Notes for newly issued 9.000% Senior Secured
First Lien Notes due 2032 (the “First Lien Notes”) and newly issued 9.750% Senior Secured Second Lien Notes due 2033 (the “Second Lien Notes” and, together with the First Lien Notes, the “New Notes”). Eligible
Holders of 2029 Notes that do not participate in the New Money Notes Issuance and Eligible Holders of 2030 Notes will be able to exchange such notes for Second Lien Notes.
As of 5:00 P.M., New York City time, on June 9, 2026 (the “Early Exchange Time”), the Company received from Eligible Holders valid and
unwithdrawn tenders and related Consents (as defined below), as reported by Epiq Corporate Restructuring, LLC (the “Exchange Agent” and “Information Agent”), representing approximately $478.3 million and
$547.9 million in aggregate principal amount of 2029 Notes and 2030 Notes, respectively, or approximately 99.9% and 99.2% of the aggregate principal amount of 2029 Notes and 2030 Notes outstanding, respectively.
In addition, as of the Early Exchange Time, the Company received the requisite consents (the “Consents”) in its concurrent consent solicitations
(the “Consent Solicitations”) from Eligible Holders of the Existing Notes to adopt certain proposed amendments to the indentures governing each series of the Existing Notes (the “Existing Notes Indentures”) to eliminate
substantially all of the affirmative and negative covenants, eliminate certain events of default, modify covenants regarding mergers and consolidations and modify or eliminate certain other provisions contained in each of the Existing Notes
Indentures, including provisions related to defeasance (collectively, the “Proposed Amendments”). The Company has entered into supplemental indentures with the trustees for the Existing Notes and the guarantors party thereto to give
effect to the Proposed Amendments, which will become operative as of the Early Settlement Date.
In connection with the Exchange Offer for the 2029 Notes,
the Company also offered $326.25 million in aggregate principal amount of newly issued First Lien Notes for cash (the “New Money Notes Issuance” and, together with the Exchange Offers, collectively, the “Offers”). The
New Notes will be issued by the Company and guaranteed on a senior secured basis by the Company’s existing and future wholly owned domestic subsidiaries (including each subsidiary guarantor of the Existing Notes). To be eligible to receive the
New Money Participant Early Exchange Consideration, each Eligible Holder of 2029 Notes (other than the Backstop Parties (as defined below)) was required to tender all of its 2029 Notes at or prior to the Early Exchange Time and must deliver in cash
their pro rata cash portion of $65.25 million in aggregate principal amount of First Lien Notes to the Exchange Agent by 5:00 P.M., New York City time, on June 10, 2026, unless extended (such time and date as it may be extended, the
“Funding Date”).
As previously announced, pursuant to a Commitment and Consent Letter (the “Commitment
Agreement”), dated as of May 11, 2026, by and among the Company, certain holders of Existing Notes and certain of the Company’s existing lenders (collectively, the “Commitment Parties”), the Backstop Parties have agreed
to purchase (i) their agreed percentage of an aggregate principal amount of $261.0 million of the New Money First Lien Notes, at a price equal to par, and (ii) up to an additional $65.25 million of First Lien Notes, at a price
equal to par, to the extent such amount is not purchased in the New Money Notes Issuance by Eligible Holders of the 2029 Notes who are not Backstop Parties, subject to the consummation of the Offers and Consent Solicitations and the satisfaction of
certain other conditions.
Eligible Holders of 2029 Notes electing to participate in the Exchange Offer for 2029 Notes will receive different Exchange
Consideration depending on their participant category: (a) Eligible Holders of 2029 Notes who elected to purchase their pro rata cash portion of New Money First Lien Notes by the Funding Date are referred to herein as “New Money
Participants,” (b) Eligible Holders of 2029 Notes who are Backstop Parties under the Commitment Agreement and tender their committed 2029 Notes are referred to herein as “Backstop Participants” and (c) Eligible Holders of 2029
Notes who are neither New Money Participants nor Backstop Participants are referred to herein as “Other Eligible Participants.” All Eligible Holders of 2030 Notes will receive the same Exchange Consideration regardless of participant
category.
As of the Early Exchange Time, approximately $124.0 million in aggregate principal amount of 2029 Notes were tendered by New Money
Participants (subject to payment of the New Money Notes Purchase Price by the Funding Date, as applicable), approximately $332.0 million in aggregate principal amount of 2029 Notes were tendered by Backstop Participants and approximately
$22.3 million in aggregate principal amount of 2029 Notes were tendered by Other Eligible Participants.
Each participating Eligible Holder must
tender all of the Existing Notes it holds through The Depository Trust Company’s (“DTC”) Automated Tender Offer Program (“ATOP”). The Company’s obligation to accept for exchange Existing Notes validly tendered
(and not validly withdrawn) and to complete the New Money Notes Issuance pursuant to the Offers and related Consent Solicitations is subject to the satisfaction or, if permitted, waiver of, certain conditions set forth in the confidential offering
memorandum and consent solicitation statement, dated May 22, 2026 (the “Offering Memorandum”). Capitalized terms used herein, but not otherwise defined, have the meanings ascribed to such terms in the Offering Memorandum.
As of 5:00 P.M., New York City time, on June 9, 2026, the right to withdraw tenders of Existing Notes and related Consents expired. Accordingly, Existing
Notes tendered for exchange at or before such time may not be validly withdrawn and Consents may no longer be revoked, unless required by applicable law or the Company determines in the future in its sole discretion to permit withdrawal and
revocation rights.
The Company further announced an amendment to the Offers, whereby the expected Early Settlement Date with respect to all Existing
Notes tendered at or prior to the Early Exchange Time is expected to be June 15, 2026. Additionally, the Expiration Time has been extended to 5:00 P.M., New York City time, on June 23, 2026 and the Late Settlement Date is expected to be
June 25, 2026.
2
The New Notes and the offering thereof have not been registered with the Securities and Exchange Commission
(the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), or any state or foreign securities laws. The Offers and Consent Solicitations are only being made, and the New Notes are only being offered and
issued, to holders of Existing Notes that are (a) reasonably believed to be qualified institutional buyers in reliance on Rule 144A promulgated under the Securities Act or (b) non-U.S. persons, in
transactions outside the United States, in reliance on Regulation S under the Securities Act (such holders, the “Eligible Holders”). Only Eligible Holders are authorized to receive or review the Offering Memorandum and to participate in
the Offers. Copies of all the documents relating to the Offers and Consent Solicitations may be obtained from the Exchange Agent and Information Agent, subject to confirmation of eligibility through online procedures established by the Exchange
Agent and Information Agent, by completing the Eligibility Letter at https://epiqworkflow.com/cases/AccendraEligibility or via email submission of the Eligibility Letter to Registration@epiqglobal.com, with a reference to “ACCENDRA” in
the subject line. There will be no letter of transmittal for the Exchange Offers.
The Offers are being made solely by the Offering Memorandum. Eligible
Holders of the Existing Notes are urged to carefully read all of the information in, or incorporated by reference into, the Offering Memorandum, including the information presented under “Risk Factors” and “Forward-Looking
Statements” before making any decision with respect to the Offers or the Consent Solicitations. None of the Company, its subsidiaries, the Exchange Agent, the Information Agent, the trustees under the Existing Notes Indentures and the
indentures that will govern the New Notes, the collateral agents under the indentures that will govern the New Notes or any of their respective affiliates, makes any recommendation as to whether holders of Existing Notes should participate in the
Offers or Consent Solicitations. Each Eligible Holder must make its own decision as to whether to participate in the Offers and whether to tender its Existing Notes and to deliver Consents.
Epiq Corporate Restructuring, LLC has been appointed as the Exchange Agent and the Information Agent for the Offers and Consent Solicitations. Questions
concerning the Offers and the Consent Solicitations may be directed to the Exchange Agent and Information Agent, in accordance with the contact details shown on the back cover of the Offering Memorandum.
Ducera Securities LLC has been engaged to act as our financial advisor for the Offers and Consent Solicitations.
No Offer or Solicitation
This press release is not
intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote, consent or approval in any jurisdiction in
connection with the Offers and Consent Solicitations, or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. In particular, this press release is not an offer of
securities for sale into the United States. The New Notes offered in the Offers have not been registered under the Securities Act or any state securities laws, and unless so registered, New Notes may not be offered or sold in the United States or to
any U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
3
About Accendra Health
Accendra Health, Inc. (NYSE: ACH) is a leading nationwide provider of products, technology and services that support health beyond the hospital for millions of
people each year. We connect patients, providers, and insurers, delivering innovative solutions that help promote better health outcomes and improve quality of life for people living with chronic, complex health conditions. Backed by the
industry-leading expertise of our Apria and Byram brands, Accendra Health is reimagining the future of home-based care.
Cautionary Note Regarding
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995. These statements include, but are not limited to, statements regarding our expectations regarding the Offers and Consent Solicitations, the future performance and financial results of the Company’s business and other non-historical statements. Some of these statements can be identified by terms and phrases such as “outlook,” “believes,” “expects,” “potential,”
“continues,” “may,” “will,” “should,” “could,” “seeks,” “predicts,” “intends,” “trends,” “plans,” “estimates,”
“anticipates” or the negative version of these words or other comparable words. The Company cautions readers of this communication that such “forward-looking statements,” wherever they occur in this communication or in other
statements attributable to the Company, are necessarily estimates reflecting the judgment of the Company’s senior management and involve a number of risks and uncertainties that could cause actual results to differ materially from those
suggested by the “forward-looking statements.”
Factors that could cause the Company’s actual results to differ materially from those
expressed or implied in such forward-looking statements include, but are not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction; the failure to satisfy other conditions
to completion of the transaction; risks related to disruption of management’s attention from the Company’s ongoing business operations due to the transaction; the effect of the announcement of the transaction on the Company’s
relationships with its customers, suppliers and other third parties, as well as its operating results and business generally; the risk that the transaction will not be consummated in a timely manner; exceeding the expected costs of the transaction;
and risks related to the Commitment Parties’ committed financing.
Additional factors that could cause the Company’s actual outcomes or
results to differ materially from those described in the forward-looking statements can be found in the “Risk Factors” sections of our most recent Annual Report on Form 10-K for the period ended
December 31, 2025, as such factors may be further updated from time to time in the Company’s other filings with the SEC. These reports are or will be accessible on the SEC’s website at www.sec.gov. These factors should not be
construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in this Current Report on Form 8-K and in the Company’s filings with the SEC. The Company
undertakes no obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise, except as required by law.
4
CONTACT:
Investors
Will Parrish
Vice President, Strategy, Corporate Development, & Investor Relations
Investor.Relations@accendra.com
ACH-CORP
ACH-IR
SOURCE: Accendra Health, Inc.
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