Form 8-K
8-K — TPG RE Finance Trust, Inc.
Accession: 0001193125-26-224430
Filed: 2026-05-15
Period: 2026-05-14
CIK: 0001630472
SIC: 6798 (REAL ESTATE INVESTMENT TRUSTS)
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: Regulation FD Disclosure
Item: Financial Statements and Exhibits
Documents
8-K — d943461d8k.htm (Primary)
EX-10.1 (d943461dex101.htm)
EX-99.1 (d943461dex991.htm)
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XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: d943461d8k.htm · Sequence: 1
8-K
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): May 14, 2026
TPG RE Finance Trust, Inc.
(Exact Name of Registrant as Specified in its Charter)
Maryland
001-38156
36-4796967
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
888 Seventh Avenue, 35th Floor, New York, New York 10106
(Address of Principal Executive Offices) (Zip Code)
(212) 601-4700
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, par value $0.001 per share
TRTX
New York Stock Exchange
6.25% Series C Cumulative Redeemable Preferred Stock, par value $0.001 per share
TRTX PRC
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01
Entry into a Material Definitive Agreement.
Senior Secured Credit Agreement
On May 14, 2026 (the “Closing Date”), TPG RE Finance Trust, Inc. (the “Company”), as borrower, entered into a Credit Agreement (the “Credit Agreement”) with Wells Fargo Bank, N.A. (“Wells Fargo”), as administrative agent and collateral agent (in such capacities, the “Agent”), and certain other lenders and issuing banks named therein. The Credit Agreement provides for, among other things, term loans in an aggregate principal amount of $400,000,000 (collectively, the “Term Loan B”) and a revolving credit facility (the “Revolving Credit Facility” and, together with the Term Loan B, the “Facilities”) in an aggregate principal amount of $100,000,000. The Company intends to use the net proceeds from the Term Loan B and any Revolving Loans (as defined below) to repay outstanding indebtedness, including partially funding the redemption of the Company’s TRTX 2022-FL5 collateralized loan obligation, or for other general corporate purposes.
Term Loan B
The Term Loan B Loans matures on May 14, 2033 and bears interest at an annual rate equal to, at the Company’s option, either (i) 2.75% plus the secured overnight financing rate (“Term SOFR”) or (ii) 1.75% plus a base rate (which is equal to the highest of (i) 0.50% per annum above the federal funds effective rate, (ii) the prime rate and (iii) one-month Term SOFR plus 1.00% per annum) (the “Base Rate”). The Term Loan B is subject to a quarterly amortization equal to 0.25% of the aggregate original principal amount commencing with the last business day of December 2026.
Revolving Credit Facility
The Revolving Credit Facility matures on May 14, 2031 and any loans drawn on the Revolving Credit Facility (any such loans, the “Revolving Loans”) bear interest at an annual rate equal to, at the Company’s option, either (i) 2.00% plus Term SOFR or (ii) 1.00% plus the Base Rate. The Revolving Loans are not subject to amortization.
Guarantees and Security
The Company’s obligations under the Credit Agreement are guaranteed by certain subsidiaries of the Company. Additionally, the Company’s obligations under the Credit Agreement are secured on a first-priority basis by substantially all of the assets of the Company and certain subsidiaries of the Company to the extent such assets are subject to a lien securing the obligations under the Credit Agreement.
Covenants
The Credit Agreement contains customary affirmative covenants and negative covenants, which are subject to a number of exceptions and adjustments and include, among other things:
•
covenants that restrict the ability of the Company and certain of its subsidiaries to incur liens on certain assets, materially alter the nature of its business, dispose of material assets, engage in mergers, consolidations and certain other fundamental changes, or engage in certain transactions with affiliates; and
•
financial covenants that require that the Company maintain (i) a consolidated Total Debt to Total Assets Ratio (as defined in the Credit Agreement) not to exceed 83.333% (the “LTV Covenant”), (ii) a minimum Interest Coverage Ratio (as defined in the Credit Agreement) of not less than 1.30 to 1.00 (the “Interest Coverage Covenant”) and (iii) minimum cash liquidity of no less than the greater of: $15.0 million and 5.0% of the recourse indebtedness of the Company and TPG RE Finance Trust Holdco, LLC, the Company’s wholly owned subsidiary (the “Liquidity Covenant”). The LTV Covenant is for the benefit of all Lenders (as defined in the Credit Agreement), whereas the Interest Coverage Covenant and Liquidity Covenant are solely for the benefit of the Revolving Lenders (as defined in the Credit Agreement).
Other
Certain lenders under the Credit Agreement and/or their affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing, and brokerage activities. Some of the lenders and their affiliates have engaged in, and may in the future engage in, investment banking, financial advisory, and other commercial dealings in the ordinary course of business with the Company or the Company’s affiliates. Such lenders have received, or may in the future receive, customary fees and commissions for such transactions.
The foregoing description of the Credit Agreement does not purport to be a complete description of the terms of the Credit Agreement and is subject to, and qualified in its entirety by, the full text of the Credit Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference insofar as it relates to the creation of a direct financial obligation.
Item 7.01
Regulation FD Disclosure.
On May 14, 2026, the Company issued a press release (the “press release”) announcing the Company’s entry into the Credit Agreement. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and is hereby incorporated by reference into this Item 7.01.
The furnishing of the press release is not intended to constitute a representation that such furnishing is required by Regulation FD or other securities laws, or that the press release includes material investor information that is not otherwise publicly available. In addition, the Company does not assume any obligation to update such information in the future.
The information contained in this Item 7.01 and Exhibit 99.1 is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section. The information in this Current Report on Form 8-K shall not be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, as amended, or the Exchange Act, unless it is specifically incorporated by reference therein.
Item 9.01
Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No.
Description
10.1
Credit Agreement, dated as of May 14, 2026, by and among TPG RE Finance Trust, Inc., Wells Fargo Bank, N.A., and certain other lenders and issuing banks named therein.
99.1
Press Release, dated May 14, 2026.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
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.
TPG RE Finance Trust, Inc.
By:
/s/ Brandon Fox
Name:
Brandon Fox
Title:
Interim Chief Financial Officer and Chief Accounting Officer
Date: May 14, 2026
EX-10.1
EX-10.1
Filename: d943461dex101.htm · Sequence: 2
EX-10.1
Exhibit 10.1
Execution Version
CREDIT AGREEMENT
Dated as of May 14, 2026
among
TPG RE FINANCE TRUST, INC.,
as the Borrower,
WELLS FARGO
BANK, N.A.,
as Administrative Agent and Collateral Agent,
and
THE LENDERS AND ISSUING
BANKS FROM TIME TO TIME PARTY HERETO
WELLS FARGO SECURITIES, LLC,
CITIBANK, N.A.,
GOLDMAN SACHS BANK
USA
and
JPMORGAN CHASE BANK,
N.A.,
as Lead Arrangers and Bookrunners
Table of Contents
Page
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01
Defined Terms
1
SECTION 1.02
Other Interpretive Provisions
97
SECTION 1.03
Accounting Terms; Accounting Periods
99
SECTION 1.04
Rounding
100
SECTION 1.05
References to Agreements, Laws, Etc.
100
SECTION 1.06
Times of Day and Timing of Payment and Performance
100
SECTION 1.07
Pro Forma and Other Calculations
100
SECTION 1.08
Available Amount Transaction
105
SECTION 1.09
Guaranties of Hedging Obligations
105
SECTION 1.10
Currency Generally
105
SECTION 1.11
Letters of Credit
106
SECTION 1.12
Benchmark Replacement Setting
106
SECTION 1.13
Rates
107
ARTICLE II
The Commitments and Borrowings
SECTION 2.01
The Loans
108
SECTION 2.02
Borrowings, Conversions and Continuations of Loans
108
SECTION 2.03
Letters of Credit
111
SECTION 2.04
Swing Line Loans
122
SECTION 2.05
Prepayments
125
SECTION 2.06
Termination or Reduction of Commitments
137
SECTION 2.07
Repayment of Loans
138
SECTION 2.08
Interest
139
SECTION 2.09
Fees
139
SECTION 2.10
Computation of Interest and Fees
139
SECTION 2.11
Evidence of Indebtedness
140
SECTION 2.12
Payments Generally
140
SECTION 2.13
Sharing of Payments
142
SECTION 2.14
Incremental Facilities
143
SECTION 2.15
Refinancing Amendments
152
SECTION 2.16
Extensions of Loans
154
SECTION 2.17
Defaulting Lenders
159
SECTION 2.18
Prepayment Premium
161
ARTICLE III
Taxes, Increased Costs Protection and Illegality
SECTION 3.01
Taxes
161
SECTION 3.02
Illegality
165
SECTION 3.03
Inability to Determine Rates
166
SECTION 3.04
Increased Cost and Reduced Return; Capital Adequacy; Reserves on Term SOFR Loans
166
SECTION 3.05
[Reserved]
167
SECTION 3.06
Matters Applicable to All Requests for Compensation
167
SECTION 3.07
Replacement of Lenders under Certain Circumstances
168
SECTION 3.08
Survival
170
i
Page
ARTICLE IV
Conditions Precedent to Credit Extensions
SECTION 4.01
Conditions to Credit Extensions on Closing Date
170
SECTION 4.02
Conditions to Credit Extensions after the Closing Date
171
ARTICLE V
Representations and Warranties
SECTION 5.01
Existence, Qualification and Power; Compliance with Laws
172
SECTION 5.02
Authorization; No Contravention
173
SECTION 5.03
Governmental Authorization
173
SECTION 5.04
Binding Effect
173
SECTION 5.05
Financial Condition; No Material Adverse Effect
174
SECTION 5.06
Litigation
174
SECTION 5.07
Labor Matters
174
SECTION 5.08
Ownership of Property; Liens
174
SECTION 5.09
Environmental Matters
174
SECTION 5.10
Taxes
174
SECTION 5.11
ERISA Compliance
175
SECTION 5.12
Subsidiaries
175
SECTION 5.13
Margin Regulations; Investment Company Act
175
SECTION 5.14
Disclosure
176
SECTION 5.15
Intellectual Property; Licenses, Etc.
176
SECTION 5.16
Solvency
176
SECTION 5.17
USA PATRIOT Act; Anti-Terrorism Laws; FCPA
176
SECTION 5.18
Collateral Documents
176
ARTICLE VI
Affirmative Covenants
SECTION 6.01
Financial Statements
177
SECTION 6.02
Certificates; Other Information
178
SECTION 6.03
Notices
180
SECTION 6.04
Payment of Taxes
180
SECTION 6.05
Preservation of Existence, Etc.
180
SECTION 6.06
Maintenance of Properties
181
SECTION 6.07
Maintenance of Insurance
181
SECTION 6.08
Compliance with Laws
181
SECTION 6.09
Books and Records
181
SECTION 6.10
Inspection Rights
182
SECTION 6.11
Covenant to Guarantee Obligations and Give Security
182
SECTION 6.12
Further Assurances and Post-Closing Covenant
185
SECTION 6.13
Use of Proceeds
186
SECTION 6.14
Maintenance of Ratings
186
SECTION 6.15
Transactions with Affiliates
186
SECTION 6.16
Environmental
190
ARTICLE VII
Negative Covenants
SECTION 7.01
Liens
190
SECTION 7.02
Indebtedness
191
SECTION 7.03
Fundamental Changes
199
SECTION 7.04
Asset Sales
201
ii
Page
SECTION 7.05
Restricted Payments
203
SECTION 7.06
Burdensome Agreements
213
SECTION 7.07
Conduct of Business
216
SECTION 7.08
Financial Covenants
216
ARTICLE VIII
Events of Default and Remedies
SECTION 8.01
Events of Default
217
SECTION 8.02
Remedies upon Event of Default
220
SECTION 8.03
Application of Funds
221
SECTION 8.04
Right to Cure
221
ARTICLE IX
The Agents
SECTION 9.01
Appointment and Authorization
223
SECTION 9.02
Rights as a Lender
225
SECTION 9.03
Exculpatory Provisions
225
SECTION 9.04
Lack of Reliance on the Administrative Agent
226
SECTION 9.05
Certain Rights of the Administrative Agent
227
SECTION 9.06
Reliance by the Agents
227
SECTION 9.07
Delegation of Duties
227
SECTION 9.08
Indemnification
227
SECTION 9.09
The Administrative Agent in Its Individual Capacity
228
SECTION 9.10
No Other Duties, Etc.
228
SECTION 9.11
Resignation by the Administrative Agent
229
SECTION 9.12
Collateral Matters
230
SECTION 9.13
Administrative Agent May File Proofs of Claim
231
SECTION 9.14
Appointment of Supplemental Administrative Agents
232
SECTION 9.15
Intercreditor Agreements
233
SECTION 9.16
Secured Cash Management Agreements, Secured Hedge Agreements and Specified Letters of
Credit
233
SECTION 9.17
Withholding Tax
234
SECTION 9.18
Erroneous Payments
234
ARTICLE X
Miscellaneous
SECTION 10.01
Amendments, Etc.
236
SECTION 10.02
Notices and Other Communications; Facsimile Copies
244
SECTION 10.03
No Waiver; Cumulative Remedies
245
SECTION 10.04
Costs and Expenses
246
SECTION 10.05
Indemnification; Limitation of Liability
246
SECTION 10.06
Marshaling; Payments Set Aside
248
SECTION 10.07
Successors and Assigns
248
SECTION 10.08
Resignation of Issuing Bank and Swing Line Lender
257
SECTION 10.09
Confidentiality
257
SECTION 10.10
Setoff
259
SECTION 10.11
Interest Rate Limitation
259
SECTION 10.12
Counterparts; Integration; Effectiveness
260
SECTION 10.13
Electronic Execution of Assignments and Certain Other Documents
260
SECTION 10.14
Survival of Representations and Warranties
260
SECTION 10.15
Severability
260
SECTION 10.16
GOVERNING LAW
260
SECTION 10.17
WAIVER OF RIGHT TO TRIAL BY JURY
261
iii
Page
SECTION 10.18
Binding Effect
261
SECTION 10.19
Lender Action
261
SECTION 10.20
Use of Name, Logo, Etc.
262
SECTION 10.21
USA PATRIOT Act
262
SECTION 10.22
Service of Process
262
SECTION 10.23
No Advisory or Fiduciary Responsibility
262
SECTION 10.24
Release of Collateral and Guarantee Obligations; Subordination of Liens
263
SECTION 10.25
Acknowledgement and Consent to Bail-In of Affected
Financial Institutions
264
SECTION 10.26
Acknowledgement Regarding Any Supported QFCs
264
iv
SCHEDULES
1.01(1)
Closing Date Subsidiary Guarantors
1.01(2)
Closing Date Cash Management Banks
1.01(3)
Closing Date Fee Owned Real Estate Assets
2.01
Commitments
2.04
Swing Line Commitments
4.01(1)(c)
Certain Collateral Documents
5.12
Subsidiaries and Other Equity Investments
7.01
Existing Liens
7.02
Existing Indebtedness
7.05
Existing Investments
10.02
Administrative Agent’s Office and Certain Addresses for Notices
EXHIBITS
Form of
A-1
Committed Loan Notice
A-2
Swing Line Notice
B-1
Term Note
B-2
Revolving Note
B-3
Swing Line Note
C
Compliance Certificate
D-1
Assignment and Assumption
D-2
Affiliated Lender Assignment and Assumption
E
Guaranty
F
Pledge and Security Agreement
G-1
Equal Priority Intercreditor Agreement
G-2
First Lien/Second Lien Intercreditor Agreement
H-1
United States Tax Compliance Certificate (Foreign
Non-Partnership Lenders)
H-2
United States Tax Compliance Certificate (Foreign Partnership Lenders)
H-3
United States Tax Compliance Certificate (Foreign
Non-Partnership Participants)
H-4
United States Tax Compliance Certificate (Foreign Partnership Participants)
I
Solvency Certificate
J
Discount Range Prepayment Notice
K
Discount Range Prepayment Offer
L
Solicited Discounted Prepayment Notice
M
Acceptance and Prepayment Notice
N
Specified Discount Prepayment Notice
O
Solicited Discounted Prepayment Offer
P
Specified Discount Prepayment Response
Q
Intercompany Note
R-1
Letter of Credit Report
R-2
Swing Line Report
v
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of May 14, 2026, by and among TPG RE FINANCE TRUST, INC., a Maryland corporation (the
“Borrower”), WELLS FARGO BANK, N.A., as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) under the Loan Documents and as collateral agent (in such capacity,
including any successor thereto, the “Collateral Agent”) under the Loan Documents, each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”) and
each Issuing Bank from time to time party hereto.
PRELIMINARY STATEMENTS
The Borrower has requested that (a) the Lenders extend credit to the Borrower in the form of (i) $400,000,000 of Closing Date Term Loans
and (ii) $100,000,000 of Revolving Commitments (which Revolving Commitments may include a sub-limit as set forth herein for the provision of Swing Line Loans and/or the issuance of Letters of Credit from time
to time) on the Closing Date as senior secured credit facilities and (b) from time to time on and after the Closing Date, the Lenders lend Revolving Loans to the Borrower to provide working capital for, and for other general corporate purposes
of, the Borrower and its Subsidiaries, pursuant to the Revolving Commitments hereunder and pursuant to the terms of, and subject to the conditions set forth in, this Agreement.
The Lenders have indicated their willingness to make Loans on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01 Defined Terms. As used in this Agreement (including the introductory paragraph hereof and the preliminary statements
hereto), the following terms have the meanings set forth below:
“Acceptable Discount” has the meaning specified in
Section 2.05(1)(e)(D)(II).
“Acceptable Prepayment Amount” has the meaning specified in
Section 2.05(1)(e)(D)(III).
“Acceptance and Prepayment Notice” means a written notice of the
Borrower’s acceptance of the Acceptable Discount in substantially the form of Exhibit M or any other form acceptable to the Borrower and the Administrative Agent.
“Acceptance Date” has the meaning specified in Section 2.05(1)(e)(D)(II).
“Acquired Indebtedness” means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into
or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred by such other Person in connection with, or in contemplation of, such other Person merging, amalgamating or consolidating with or into, or becoming a
Restricted Subsidiary of, such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
“Acquiring Subsidiary” has the meaning set forth in the definition of “Permitted
Investments”.
“Additional Lender” means, at any time, any bank, other financial institution or institutional
lender or investor that, in any case, is not an existing Lender and that agrees to provide any portion of any (1) Incremental Loan in accordance with Section 2.14, (2) Other Loans pursuant to a Refinancing Amendment in
accordance with Section 2.15 or (3) Replacement Loans pursuant to Section 10.01; provided that each Additional Lender shall be subject to the approval of the Administrative Agent, such
approval not to be unreasonably withheld, conditioned or delayed, in each case solely to the extent that any such consent would be required from the Administrative Agent under Section 10.07(2)(c)(ii) for an assignment of
Loans to such Additional Lender, and in the case of Incremental Revolving Commitments and Other Revolving Commitments, the Swing Line Lenders and the Issuing Banks, each such approval not to be unreasonably withheld, conditioned or delayed, in each
case solely to the extent such consent would be required for any assignment to such Additional Lender under Section 10.07(2)(c); provided further that any Additional Lender will be subject to the limitations set forth in
Section 10.07(8) as if it was becoming a Lender by way of assignment.
“Additional Letter of Credit
Facility” means any facility established by the Borrower and/or any Restricted Subsidiary to obtain letters of credit, bank guarantees, bankers acceptances or other similar instruments required by customers, suppliers or landlords or
otherwise required in the ordinary course of business or consistent with industry practice.
“Administrative Agent” has
the meaning specified in the introductory paragraph to this Agreement.
“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 Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (1) any EEA Financial Institution or (2) any UK Financial Institution.
“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 this definition, “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. No Person shall be an “Affiliate” of the Borrower or any Subsidiary thereof solely because it is an unrelated portfolio company of the Investor (except for purposes of
Section 6.15) and none of the Administrative Agent, the Arrangers, any Lender (other than any Affiliated Lender or any Debt Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of the
Borrower or any subsidiary thereof.
“Affiliate Transaction” has the meaning specified in
Section 6.15(1).
2
“Affiliated Lender” means, at any time, any Lender that is the Investor
or an Affiliate of the Investor (other than (1) the Borrower or any Subsidiary, (2) any Debt Fund Affiliate or (3) any natural person) at such time.
“Affiliated Lender Assignment and Assumption” has the meaning specified in Section 10.07(8)(d).
“Affiliated Lender Cap” has the meaning specified in Section 10.07(8)(iv).
“Agent Parties” has the meaning specified in Section 10.02(4).
“Agent-Related Distress Event” means, with respect to the Administrative Agent or any other Person that directly or
indirectly controls the Administrative Agent (each, a “Distressed Agent”), (1) that such Distressed Agent is or becomes subject to a voluntary or involuntary case under any Debtor Relief Law, (2) a custodian, conservator,
receiver or similar official is appointed for such Distressed Agent or any substantial part of such Distressed Agent’s assets or (3) such Distressed Agent is subject to a forced liquidation, makes a general assignment for the benefit of
creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Agent or its assets to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not
be deemed to have occurred solely by virtue of the ownership or acquisition of any Equity Interests in the Administrative Agent or any Person that directly or indirectly controls the Administrative Agent by a Governmental Authority or an
instrumentality thereof so long as such ownership interest does not result in or provide the Administrative Agent 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 the Administrative Agent (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with the Administrative Agent.
“Agent-Related Persons” means, in respect of any Agent, such Agent’s (or in the case of the Administrative Agent, the
Administrative Agent’s and the Collateral Agent’s) respective Affiliates, and the officers, directors, employees, agents, attorney-in-fact, partners,
trustees and advisors of such Persons and of such Persons’ Affiliates.
“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.
“Agreement” means this Credit Agreement, as amended,
restated, amended and restated, refinanced, replaced, extended, modified or supplemented from time to time in accordance with the terms hereof.
“AHYDO Payment” means any mandatory prepayment or redemption pursuant to the terms of any Indebtedness that is intended or
designed to cause such Indebtedness not to be treated as an “applicable high yield discount obligation” within the meaning of Section 163(i) of the Code.
“All-In Yield” means, as to any Indebtedness, the yield thereof, whether in the
form of interest rate, margin, OID, upfront fees, a Term SOFR floor or Base Rate floor (with any increased amount being determined in the manner described in clause (3) of the following proviso), or otherwise, in each case, incurred or
payable by the Borrower ratably to all lenders of such Indebtedness; provided that (1) OID and upfront fees shall be equated to interest rate assuming a four (4)-year life to maturity (or, if less, the stated life to maturity at the time
of incurrence of the applicable Indebtedness), (2) “All-In Yield” shall not include
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arrangement fees, structuring fees, commitment fees, underwriting fees, success fees, advisory fees, ticking fees, consent or amendment fees and any similar fees (regardless of how such fees are
computed and whether shared or paid, in whole or in part, with or to any or all lenders) and any other fees not generally paid ratably to all lenders of such Indebtedness and (3) with respect to any Indebtedness that includes a Term SOFR floor
or Base Rate floor, (a) to the extent that the Reference Rate on the date that the All-In Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the
Applicable Rate for such Indebtedness for the purpose of calculating the All-In Yield and (b) to the extent that the Reference Rate on the date that the All-In
Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the All-In Yield.
“Applicable Discount” has the meaning specified in Section 2.05(1)(e)(C)(II).
“Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity”.
“Applicable Percentage” means, in respect of any Revolving Facility, with respect to any Revolving Lender under such
Revolving Facility at any time, the percentage (carried out to the ninth decimal place) of such Revolving Facility represented by such Revolving Lender’s Revolving Commitments under such Revolving Facility at such time, subject to adjustment
as provided in Section 2.17. If the commitment of each Revolving Lender under a Revolving Facility to make Revolving Loans and the obligation of the Issuing Banks to make L/C Credit Extensions under such Revolving Facility
have been terminated pursuant to Section 8.02, or if the Revolving Commitments under such Revolving Facility have otherwise expired in full, then the Applicable Percentage of each Revolving Lender in respect of such
Revolving Facility shall be determined based on the Applicable Percentage of such Revolving Lender in respect of such Revolving Facility most recently in effect, giving effect to any subsequent assignments.
“Applicable Rate” means a percentage per annum equal to:
(1) with respect to Closing Date Term Loans (a) 2.75% for Term SOFR Loans and (b) 1.75% for Base Rate Loans;
(2) with respect to Revolving Loans and Letter of Credit fees (a) 2.00% for Term SOFR Loans and Letter of Credit fees and (b)
1.00% for Base Rate Loans; and
(3) with respect to unused Revolving Commitments under the Closing Date Revolving Facility,
(a) 0.25% per annum, if the Average Excess Availability under the Closing Date Revolving Facility is equal to or greater than 50.0% and (b) 0.15%, if the Average Excess Availability under the Closing Date Revolving Facility is less than
50.0%.
“Appropriate Lender” means, at any time, (1) with respect to Loans of any Class, the Lenders of such
Class, (2) with respect to Letters of Credit, (a) the relevant Issuing Banks and (b) the relevant Revolving Lenders and (3) with respect to the Swing Line Facility, (a) the relevant Swing Line Lenders and (b) if any
Swing Line Loans are outstanding pursuant to Section 2.04(1), the Revolving Lenders.
“Approved
Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (1) such Lender, (2) an Affiliate of such Lender or (3) an entity or an Affiliate of an entity that administers, advises or
manages such Lender.
“Arrangement Fee” has the meaning specified in the Arranger Fee Letter.
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“Arranger Fee Letter” means that certain Amended and Restated Arranger
Fee Letter, dated as of May 13, 2026, by and among the Borrower, Wells Fargo Securities, LLC, TPG BD, Citibank, N.A., Goldman Sachs Bank USA and JPMorgan Chase Bank, N.A.
“Arrangers” means Wells Fargo Securities, LLC, TPG BD, LLC, Citibank, N.A., Goldman Sachs Bank USA and JPMorgan Chase Bank,
N.A., each in its capacity as a lead arranger and bookrunner under this Agreement.
“Asset Financing Facility” means
any indebtedness or obligations under securitization transactions, repurchase facilities, warehouse facilities, note-on-note financings, other credit facilities and
arrangements similar to any of the foregoing and any other indebtedness or obligations, in each case, secured directly or indirectly by, and incurred for the primary purpose of directly or indirectly funding the origination or acquisition of, or any
Investment in, or otherwise financing, refinancing or capitalizing any previous origination or acquisition of, or Investment in, any CRE Finance Assets.
“Asset Sale” means:
(1) the sale, conveyance, transfer or other disposition (including any of the foregoing to a Divided LLC pursuant to an LLC
Division), whether in a single transaction or a series of related transactions, of property or assets of the Borrower or any Restricted Subsidiary (each referred to in this definition as a
“disposition”), provided that all sales, leases, subleases, syndications and other dispositions of CRE Finance Assets, Real Estate Investments and/or related assets, in connection therewith in the ordinary course
of business (as determined in good faith by the Borrower) shall not constitute a disposition, provided, further, that to the extent that any CRE Finance Assets, Real Estate Investments and/or related assets constituting
Collateral are disposed of to any Person other than a Loan Party, such CRE Finance Assets, Real Estate Investments and/or related assets shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically
released upon the consummation of such disposition (it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with
Article IX hereof); or
(2) the issuance or sale of Equity Interests (other than Preferred Stock
or Disqualified Stock of Restricted Subsidiaries issued in compliance with Section 7.02 and directors’ qualifying shares or shares or interests required to be held by foreign nationals or other third parties to the
extent required by applicable Law) of any Restricted Subsidiary (other than to the Borrower or another Restricted Subsidiary), whether in a single transaction or a series of related transactions;
in each case, other than:
(a) any disposition of:
(i) Cash Equivalents or Investment Grade Securities,
(ii) obsolete, damaged or worn out property or assets, any disposition of property or assets in the ordinary course of
business, any disposition of inventory or goods (or other assets) held for sale and any disposition of immaterial assets or property or property or assets no longer used or useful in the ordinary course or the principal business of the Borrower and
its Restricted Subsidiaries (as determined in good faith by the management of the Borrower),
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(iii) assets no longer economically practicable or commercially reasonable
to maintain (as determined in good faith by the management of the Borrower),
(iv) improvements made to leased real
property to landlords pursuant to customary terms of leases entered into in the ordinary course of business or consistent with industry practice, and
(v) assets for purposes of charitable contributions or similar gifts to the extent such assets are not material to the ability
of the Borrower and its Restricted Subsidiaries, taken as a whole, to conduct their business in the ordinary course;
(b)
the disposition of all or substantially all of the assets of the Borrower in a manner permitted pursuant to Section 7.03 (other than a transaction described in clause (7) of
Section 7.03);
(c) any disposition in connection with the making of any Restricted Payment that
is permitted to be made, and is made, under Section 7.05, any Permitted Investment or any acquisition otherwise permitted under this Agreement;
(d) any disposition of property or assets or issuance or sale of Equity Interests of any Restricted Subsidiary with an
aggregate fair market value for any individual transaction or series of related transactions not to exceed the greater of (i) $11,250,000 and (ii) 0.25% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis)
determined at the time of the making of such disposition;
(e) any disposition of property or assets or issuance of
securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary; provided that if such transaction constitutes an Investment, any such disposition or issuance by any Loan Party to
any Restricted Subsidiary that is not a Loan Party shall otherwise be permitted by Section 7.05 or the definition of “Permitted Investment”;
(f) to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for
use in a Similar Business;
(g) (i) the lease, assignment or sublease, license or sublicense of any real or personal
property (other than IP Rights) in the ordinary course of business or consistent with industry practice and (ii) the exercise of termination rights with respect to any lease, sublease, license or sublicense or other agreement;
(h) any issuance, disposition or sale of Equity Interests in, or Indebtedness, assets or other securities of, an Unrestricted
Subsidiary;
(i) foreclosures, condemnation, expropriation, eminent domain or any similar action (including for the
avoidance of doubt, any Casualty Event) with respect to assets;
(j) so long as the Borrower would be in compliance with
Section 7.08 on a pro forma basis, dispositions of Securitization Assets to a Securitization Subsidiary; provided that such disposition shall be for no less than the fair market value of such property at the time of
such disposition as determined by the Borrower in good faith;
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(k) any disposition of Securitization Assets (other than to a Securitization
Subsidiary) or related assets in connection with any Qualified Securitization Facility;
(l) the sale, lease, assignment,
license, sublicense, sublease or discount of inventory, equipment, accounts receivable, notes receivable or other current assets in the ordinary course of business or consistent with industry practice or the conversion of accounts receivable to
notes receivable or other dispositions of accounts receivable in connection with the collection thereof;
(m) the non-exclusive licensing or sublicensing of IP Rights or other general intangibles in the ordinary course of business or consistent with past practice or industry practice;
(n) any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation
claims in the ordinary course of business or consistent with industry practice or past practice;
(o) the unwinding of any
Hedging Obligations or Cash Management Obligations;
(p) sales, transfers and other dispositions of Investments in joint
ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(q) the lapse, abandonment or other disposition of IP Rights in the ordinary course of business or consistent with past
practice or industry practice, which in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;
(r) the granting of a Lien that is permitted under Section 7.01;
(s) the issuance of directors’ qualifying shares and shares of Capital Stock of Foreign Subsidiaries issued to foreign
nationals as required by applicable Law;
(t) the disposition of any assets (including Equity Interests) (i) acquired
in an acquisition or other Investment permitted hereunder, which assets are (A) not used or useful in the ordinary course or the principal business of the Borrower and its Restricted Subsidiaries or
(B) non-core assets or assets that are surplus or unnecessary to the business or operations of the Borrower and its Restricted Subsidiaries (in each case of the foregoing subclauses (A) and
(B), as determined by the Borrower in good faith) or (ii) made in connection with the approval of any applicable antitrust or similar regulatory authority or otherwise necessary or advisable in the good faith determination of the
Borrower to consummate any acquisition or other Investment permitted hereunder;
(u) dispositions of property to the extent
that such property is exchanged for credit against the purchase price of similar replacement property;
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(v) dispositions of property with an aggregate fair market value not to
exceed the greater of (i) $16,250,000 and (ii) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) in connection with any Sale-Leaseback Transaction;
(w) the settlement or early termination of any Permitted Bond Hedge Transaction and the settlement or early termination of any
related Permitted Warrant Transaction;
(x) dispositions of property acquired with Excluded Contributions (up to the
aggregate amount of Excluded Contributions applied to fund the acquisition of such property); and
(aa) any
(i) disposition, sale or other transfer of CRE Finance Assets, Real Estate Investments and/or related assets in connection with any Asset Financing Facility and/or CRE Financing, and any transaction in connection therewith and (ii) any
transaction in connection with the servicing, administration, operation or management (including property management) of CRE Finance Assets and/or Real Estate Investments, in each case, in the ordinary course of business (as determined in good faith
by the Borrower).
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or
more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an Assignment and
Assumption substantially in the form of Exhibit D-1 or any other form approved by the Administrative Agent.
“Assumed Acquisition Debt” has the meaning specified in Section 7.02(2)(n).
“Attorney Costs” means all reasonable fees, expenses and disbursements of any law firm or other external legal counsel, to
the extent documented in reasonable detail and invoiced.
“Attributable Indebtedness” means, on any date, in respect of
any Finance Lease Obligation of any Person, the amount thereof that would appear as a liability on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“Auction Agent” means (1) the Administrative Agent or (2) any other financial institution or advisor engaged by
the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.05(1)(e); provided that the Borrower shall not
designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided
further that neither the Borrower nor any of its Affiliates may act as the Auction Agent.
“Auto-Extension Letter of
Credit” has the meaning specified in Section 2.03(2)(c).
“Available Incremental
Amount” has the meaning specified in Section 2.14(4)(c).
“Available Tenor” means,
as of any date of determination and with respect to the then-current Benchmark, as applicable, (1) if the then-current Benchmark (or component thereof) is a term rate, any tenor for such Benchmark that is or may be used for determining the
length of an Interest Period or (2) otherwise, any payment period for interest calculated with reference to such Benchmark
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(or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark 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 Section 1.12(4) (but including any tenor for such Benchmark
that is added to the definition of “Interest Period” pursuant to Section 1.12(4)).
“Average Excess Availability” means, for any fiscal quarter, with respect to the Revolving Facility, the quotient,
expressed as a percentage, obtained by dividing (1) the average daily Excess Availability (calculated excluding any Swingline Loans) for such fiscal quarter by (2) average daily Revolving Commitments (other than the Commitments of
Defaulting Lenders) during such fiscal quarter.
“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, (1) 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 for such EEA Member Country from time to time which is described in the EU
Bail-In Legislation Schedule and (2) 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” has the meaning specified in Section 8.02.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (1) the Federal Funds Rate
plus 1/2 of 1.00%, (2) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States 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
reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent) and (3) Term SOFR on such day for an Interest Period of one (1) month plus
1.00% (or, if such day is not a Business Day, the immediately preceding Business Day). If the Base Rate is being used as an alternate rate of interest pursuant to Article III hereof, then the Base Rate shall be the greater of clause
(1) and (2) above and shall be determined without reference to clause (3) above.
“Base Rate
Loan” means a Loan that bears interest based on the Base Rate.
“Base Rate Term SOFR Determination Day” has
the meaning set forth in the definition of “Term SOFR”.
“Basket” means any amount, threshold, exception or
value (including by reference to the Total Debt to Total Assets Ratio, Senior Debt to Total Assets Ratio, Interest Coverage Ratio or Total Assets) permitted or prescribed with respect to any Lien, Indebtedness, Asset Sale, Investment, Restricted
Payment, transaction, action, judgment or amount under any provision in this Agreement or any other Loan Document.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event and the
related Benchmark Replacement Date have occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate
pursuant to Section 1.12.
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“Benchmark Replacement” means with respect to any Benchmark Transition
Event, for any Available Tenor, the sum of: (1) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a replacement benchmark
rate or the mechanism for determining such a rate by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated
syndicated credit facilities at such time and (2) the related Benchmark Replacement Adjustment; provided that in no event shall Benchmark Replacement for the Closing Date Term Loans and the Closing Date Revolving Facility be less than
0.00% per annum.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current
Benchmark with an 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 Borrower giving due consideration to (1) 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 or (2) 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 the use, administration, adoption or
implementation of any Benchmark Replacement, 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” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of
interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 1.12 and other technical, administrative or
operational matters) that the Administrative Agent decides, with the consent of the Borrower (such consent not to be unreasonably withheld), may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and
administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the
Administrative Agent determines, with the consent of the Borrower (such consent not to be unreasonably withheld), that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative
Agent decides, with the consent of the Borrower (such consent not to be unreasonably withheld), is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current
Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition
Event”, the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof)
permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
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(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 non-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, 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 the occurrence of one or more of the following events with respect to the then-current
Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or
the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at
the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or
the published component used in the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such
component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component),
which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such
statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or
the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not 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 Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (1) the
applicable Benchmark Replacement Date and (2) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the ninetieth (90th) day (or such
other date selected by the Administrative Agent and the Borrower) prior to the expected date of such event as of such public statement or publication of information (as such expected date may be delayed pursuant to any subsequent public statement or
event) (or if the expected date of such prospective event is fewer than ninety (90) days (or such other date selected by the Administrative Agent and the Borrower) after such statement or publication, the date of such statement or publication).
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“Benchmark Unavailability Period” means, with respect to any then-current
Benchmark, the period (if any) (1) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 1.12 and (2) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
Section 1.12.
“Beneficial Ownership Certification” means a certification regarding
beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31
C.F.R. § 1010.230.
“Benefit Plan” means any of (1) an “employee benefit plan” (as defined in
ERISA) that is subject to Title I of ERISA, (2) a “plan” as defined in and subject to Section 4975 of the Code or (3) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of
Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” means, with respect to any given party, an “affiliate” (as such term is defined under, and
interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Big Boy Letter” means a letter from a Lender
acknowledging that (1) an assignee may have information regarding the Borrower and any Subsidiary of the Borrower, their businesses, their ability to perform the Obligations or any other material information that has not previously been
disclosed to the Administrative Agent and the Lenders (“Excluded Information”), (2) the Excluded Information may not be available to such Lender, (3) such Lender has independently and without reliance on any other party made
its own analysis and determined to assign Term Loans to such assignee pursuant to Section 10.07(8) or (12) notwithstanding its lack of knowledge of the Excluded Information and (4) such Lender waives and
releases any claims it may have against the Administrative Agent, such assignee, the Borrower and the Subsidiaries of the Borrower with respect to the nondisclosure of the Excluded Information; or otherwise in form and substance reasonably
satisfactory to such assignee, the Administrative Agent and assigning Lender.
“Board of Directors” means, for any
Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single Person, the Board of Directors of such Person, or, in either
case, any committee thereof duly authorized to act on behalf of such Board of Directors. Unless otherwise provided, “Board of Directors” means the Board of Directors of the Borrower.
“Borrower” has the meaning specified in the introductory paragraph to this Agreement; provided that upon
consummation of any transaction permitted by Section 7.03(4), “Borrower” shall mean (or include, as applicable) a Successor Borrower.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrower Offer of Specified Discount Prepayment” means any offer by any Borrower Party to make a voluntary prepayment of
Loans at a specified discount to par pursuant to Section 2.05(1)(e)(B).
“Borrower Solicitation of
Discount Range Prepayment Offers” means the solicitation by any Borrower Party of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to
Section 2.05(1)(e)(C).
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“Borrower Solicitation of Discounted Prepayment Offers” means the
solicitation by any Borrower Party of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.05(1)(e)(D).
“Borrowing” means a borrowing consisting of Loans of the same Class and Type made, converted or continued on the same
date and, in the case of Term SOFR Loans, having the same Interest Period.
“Broker-Dealer Regulated Subsidiary” means
any Subsidiary of the Borrower that is registered as a broker-dealer under the Exchange Act or any other applicable Laws requiring such registration.
“Business Day” means any day that is not a Legal Holiday.
“Call Premium” has the meaning specified in Section 2.18(1).
“Capital Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized under Finance Lease Obligations) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as
capital expenditures on the consolidated statement of cash flows of the Borrower and the Restricted Subsidiaries.
“Capital
Stock” means:
(1) in the case of a corporation, corporate stock or shares in the capital of such corporation;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) 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, but excluding from all of the foregoing any debt securities convertible into or exchangeable for Capital Stock, whether or not
such debt securities include any right of participation with Capital Stock.
“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 any Subsidiary of the Borrower that is subject to regulation as an insurance company
(or any Subsidiary thereof).
“Cash Collateral” has the meaning specified in the definition of “Cash
Collateralize”.
“Cash Collateral Account” means an account held in the name of the Borrower at a bank or
financial institution reasonably acceptable to the Collateral Agent, and subject to the sole dominion and control of, the Collateral Agent.
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“Cash Collateralize” means, in respect of an Obligation, to provide and
pledge cash or Cash Equivalents in Dollars as collateral, at a location and pursuant to documentation in form and substance reasonably satisfactory to the relevant Issuing Bank with respect to any Letter of Credit, as applicable (and “Cash
Collateralized” and “Cash Collateralizing” have corresponding meanings). “Cash Collateral” has a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other
credit support.
“Cash Equivalents” means, as at any date of determination,
(1) readily marketable securities (i) issued or directly and unconditionally guaranteed or insured as to interest and
principal by the U.S. government or (ii) issued by any agency or instrumentality of the U.S. the obligations of which are backed by the full faith and credit of the U.S., in each case maturing within one (1) year after such date and, in
each case, repurchase agreements and reverse repurchase agreements relating thereto;
(2) readily marketable direct
obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or by any foreign government, in each case maturing within one (1) year after such date and having, at the time of
the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating
such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto;
(3) commercial paper maturing no more than one (1) year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such
obligations, an equivalent rating from another nationally recognized statistical rating agency);
(4) deposits, money
market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one (1) year after such date and issued or accepted by any Lender or by any bank organized under, or
authorized to operate as a bank under, the laws of the U.S., any state thereof or the District of Columbia or any political subdivision thereof and that has capital and surplus of not less than $100,000,000 and, in each case, repurchase agreements
and reverse repurchase agreements relating thereto;
(5) securities with maturities of six (6) months or less from the
date of acquisition backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than $100,000,000;
(6) shares of any money market mutual fund that has (i) substantially all of its assets invested in the types of
investments referred to in clauses (1) through (5) above, (ii) net assets of not less than $250,000,000 and (iii) a rating of at least A-2 from S&P or at least
P-2 from Moody’s;
(7) solely with respect to any Captive Insurance
Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable law; and
(8) commercial paper in an aggregate amount of not more than $50,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any state of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or
“A-1” (or the then equivalent grade) by S&P.
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The term “Cash Equivalents” shall also include (x) Investments of the type
and maturity described in clauses (1) through (8) above of foreign obligors, which Investments or obligors (or the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating
agencies and (y) other short-term Investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in Investments that are analogous to the Investments described in clauses (1) through (8) and
in this paragraph.
“Cash Management Agreement” means any agreement entered into from time to time by the Borrower or
any Restricted Subsidiary in connection with cash management services for collections, other Cash Management Services and for operating, payroll and trust accounts of such Person, including automatic clearing house services, controlled disbursement
services, electronic funds transfer services, information reporting services, lockbox services, stop payment services and wire transfer services.
“Cash Management Bank” means (1) any Person set forth on Schedule 1.01(2) or an Affiliate of such Person,
(2) any Person that is an Agent, a Lender or an Affiliate of an Agent or Lender party to a Cash Management Agreement, whether or not such Person subsequently ceases to be an Agent, a Lender or an Affiliate of an Agent or Lender or (3) to
the extent such person is reasonably satisfactory to the Administrative Agent, any Person from time to time designated in writing as a “Cash Management Bank” by the Borrower to the Administrative Agent.
“Cash Management Obligations” means obligations owed by the Borrower or any Restricted Subsidiary to any Cash Management
Bank in connection with, or in respect of, any Cash Management Services.
“Cash Management Services” means
(1) commercial credit cards, stored value cards, merchant card services, purchase or debit cards, including non-card e-payables services, (2) treasury
management services (including controlled disbursement, overdraft, automatic clearing house fund transfer services, return items, interstate depository network services, Society for Worldwide Interbank Financial Telecommunication transfers and cash
pooling), (3) foreign exchange, netting and currency management services and (4) any other demand deposit or operating account relationships or other cash management services, including under any Cash Management Agreements.
“Casualty Event” means any event that gives rise to the receipt by the 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.
“Catch-Up Management Fees” has the meaning specified in
Section 6.15(2)(c).
“Change in Law” means the occurrence, after the Closing Date, of any of
the following: (1) the adoption of any law, rule, regulation or treaty (excluding the taking effect after the Closing Date of a law, rule, regulation or treaty adopted prior to the Closing Date), (2) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any Governmental Authority or (3) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority. It
is understood and agreed that (a) the Dodd–Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203, H.R. 4173), all Laws relating thereto and all interpretations and applications
thereof and (b) 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 regulatory authorities,
in each case pursuant to Basel III, shall, for the purpose of this Agreement, be deemed to be adopted subsequent to the Closing Date.
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“Change of Control” means at any time following the Closing Date, the
acquisition by any Person (other than a Permitted Holder) or Persons (other than one or more Permitted Holders) constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), becoming the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act) (excluding (a) any employee benefit plan of such Person and its subsidiaries, and any
Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan or (b) one or more Permitted Holders), directly or indirectly, of a majority of the controlling interests of the Borrower; provided that
no transaction shall constitute a Change of Control if a Permitted Holder continues, after giving effect to such transaction, to exercise investment control over such Person.
“Charge” means any charge, fee, expense, expenditure, cost, loss, accrual, reserve of any kind and any other deduction
included in the calculation of Consolidated Net Income.
“Class” (1) when used with respect to Lenders, refers to
whether such Lenders have Loans or Commitments with respect to a particular Class of Loans or Commitments, (2) when used with respect to Commitments, refers to whether such Commitments are Closing Date Term Loan Commitments, commitments
with respect to the Closing Date Revolving Facility, Revolving Commitments, Incremental Revolving Commitments, Other Revolving Commitments, Incremental Term Commitments, Commitments in respect of any Class of Replacement Loans, Extended
Revolving Commitments of a given Extension Series or Other Term Loan Commitments of a given Class of Other Loans, in each case not designated part of another existing Class and (3) when used with respect to Loans or a Borrowing,
refers to whether such Loans, or the Loans comprising such Borrowing, are Closing Date Term Loans, Revolving Loans under the Closing Date Revolving Facility, Incremental Term Loans, Incremental Revolving Loans, Other Revolving Loans, Replacement
Loans, Extended Term Loans, Loans made pursuant to Extended Revolving Commitments, or Other Term Loans, in each case not designated part of another existing Class. Commitments (and, in each case, the Loans made pursuant to such Commitments) that
have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have identical terms and conditions shall be construed to be in the same Class.
“Closing Date” means May 14, 2026.
“Closing Date Facilities” means the Closing Date Term Loan Facility and the Closing Date Revolving Facility.
“Closing Date Revolving Facility” means the Revolving Facility made available by the Revolving Lenders as of the Closing
Date.
“Closing Date Revolving Lender” means, at any time, any Lender that has a Revolving Commitment with respect to
the Closing Date Revolving Facility at such time.
“Closing Date Term Loan Amortization Percentage” means 0.25%.
“Closing Date Term Loan Commitment” means, as to each Term Lender, its obligation to make a Closing Date Term Loan to the
Borrower in an aggregate amount equal to the amount specified opposite such Term Lender’s name on Schedule 2.01 under the caption “Closing Date Term Loan Commitment” or in the Assignment and Assumption (or Affiliated Lender
Assignment and Assumption) pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement (including pursuant to Section 2.14,
2.15 or 2.16). The initial aggregate amount of the Closing Date Term Loan Commitments is $400,000,000.
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“Closing Date Term Loan Facility” means the Closing Date Term Loans.
“Closing Date Term Loans” means the Term Loans made by the Term Lenders on the Closing Date to the Borrower pursuant to
Section 2.01(1).
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Collateral” means all the “Collateral” (or equivalent term, including “Pledged Collateral”) as
defined in any Collateral Document and the Mortgaged Properties, if any.
“Collateral Agent” has the meaning specified
in the introductory paragraph to this Agreement.
“Collateral and Guarantee Requirement” means, at any time, the
requirement that:
(1) the Collateral Agent shall have received each Collateral Document required to be delivered
(a) on the Closing Date pursuant to Sections 4.01(1)(c) or 4.01(1)(d) or (b) pursuant to the Security Agreement or Sections 6.11 or 6.12 at such time required by the
Security Agreement or by such Sections to be delivered, in each case, duly executed by each Loan Party that is party thereto;
(2) all Obligations shall have been unconditionally guaranteed by (a) the Borrower (other than with respect to its own
Obligations), and (b) each Restricted Subsidiary that is a wholly owned Material Subsidiary (other than any Excluded Subsidiary), which as of the Closing Date shall include those that are listed on Schedule 1.01(1) hereto (the Persons in
the preceding clauses (a) through (b) (together with any Person joined pursuant to the Excluded Subsidiary Joinder Exception) collectively, the “Guarantors”);
(3) except to the extent otherwise provided hereunder or under any Collateral Document or constituting Excluded Assets, the
Obligations and the Guaranty shall have been secured by a perfected security interest, subject only to Liens permitted by Section 7.01, on:
(a) [reserved],
(b) all Equity Interests of each direct, wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) that is
directly owned by any Loan Party, and
(c) 65.0% of the issued and outstanding Equity Interests of each (i) wholly
owned Material Domestic Subsidiary that is a Foreign Subsidiary Holdco and (ii) wholly owned Material Foreign Subsidiary, in each case of clauses (i) and (ii) above, that is directly owned by a Loan Party (in each case, to the extent such
Material Domestic Subsidiary or Material Foreign Subsidiary is not an Excluded Subsidiary (other than by virtue of being a Foreign Subsidiary Holdco or Foreign Subsidiary, as applicable)); and
(4) except to the extent otherwise provided hereunder or under any Collateral Document, including subject to Liens permitted by
Section 7.01, and in each case subject to exceptions and limitations otherwise set forth in this Agreement and the Collateral Documents, the Obligations and the Guaranty shall have been secured by a security interest in
substantially all tangible and intangible personal property of the Borrower and each other Guarantor (including accounts (other than Securitization Assets), inventory, equipment, investment property, intercompany notes, contract rights, applications
and registrations of IP Rights filed in the United States, other general intangibles, and proceeds of the foregoing) (in each case, other than Excluded Assets), in each case,
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(a) that has been perfected (to the extent such security interest may be
perfected) by:
(i) delivering certificated securities and instruments (other than Excluded Assets), in which a security
interest can be perfected by physical control, in each case to the extent expressly required hereunder or the Security Agreement (which shall be limited to any promissory note in excess of $25,000,000, Indebtedness of any Restricted Subsidiary that
is not a Guarantor that is owing to any Loan Party (which may be evidenced by the Intercompany Note and pledged to the Collateral Agent) and Equity Interests of the Borrower and its wholly owned Restricted Subsidiaries that are Material Subsidiaries
constituting “certificated securities” (within the meaning of Article 8 of the Uniform Commercial Code) otherwise required to be pledged pursuant to the Collateral Documents to the extent required under
clause (3) above),
(ii) filing financing statements under the Uniform Commercial Code of any
applicable jurisdiction,
(iii) making any necessary filings with the United States Patent and Trademark Office or United
States Copyright Office, or
(iv) filings in the applicable real estate records with respect to Mortgaged Properties (or
any fixtures related to Mortgaged Properties) to the extent required by the Collateral Documents, and
(b) with the
priority required by the Collateral Documents; provided that any such security interests in the Collateral shall be subject to the terms of the Intercreditor Agreements to the extent expressly required by this Agreement.
(5) subject to the exceptions and limitations set forth in this Agreement, the Collateral Agent shall have received
counterparts of a Mortgage, together with the other deliverables described in Section 6.11(2)(b), with respect to each Material Real Property listed on Schedule 1.01(3), if any, to the extent required to be delivered
pursuant to Section 6.11 or Section 6.12 (the “Mortgaged Properties”) duly executed and delivered by the record owner of such property within the time periods set forth in said
Sections; provided that to the extent any Mortgaged Property is located in a jurisdiction which imposes mortgage recording taxes, intangibles tax, documentary tax or similar recording fees or Taxes, (a) the relevant Mortgage shall not secure an
amount in excess of the fair market value of the Mortgaged Property subject thereto and (b) the relevant Mortgage shall not secure the Indebtedness in respect of Letters of Credit or the Revolving Facility to the extent those jurisdictions
impose such aforementioned Taxes on paydowns or re-advances applicable to such Indebtedness unless it is feasible to limit recovery to a capped amount that would not be subject to re-borrowing. The foregoing definition shall not require, and the Loan Documents shall not contain any requirements as to, the creation, perfection or maintenance of pledges of, or security interests in, Mortgages
on, or the obtaining of Mortgage Policies, surveys, abstracts or appraisals or taking other actions with respect to, any Excluded Assets.
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The Collateral Agent may grant extensions of time for the creation, perfection or
maintenance of security interests in, or the execution or delivery of any Mortgage and the obtaining of title insurance, surveys or Opinions of Counsel with respect to, particular assets (including extensions beyond the Closing Date for the
creation, perfection or maintenance of security interests in the assets of the Loan Parties on such date) and any such extension may, if agreed by the Collateral Agent, be effective retroactively.
There shall be (1) no actions required by the Laws of any non-U.S. jurisdiction under the Loan
Documents in order to create any security interests in any assets or to record, perfect or make enforceable such security interests in any assets (including any IP Rights issued, registered or applied for in any
non-U.S. jurisdiction) and (2) no Guaranties or Collateral Documents (including security agreements and pledge agreements) governed under the laws of any non-U.S.
jurisdiction. Notwithstanding anything else provided in the Loan Documents, the Borrower may, in its sole discretion, elect to join any Excluded Subsidiary (other than, in each case, an Unrestricted Subsidiary) as a Guarantor subject to, in the case
of a Foreign Subsidiary, (a) the jurisdiction of incorporation of any such Foreign Subsidiary being reasonably satisfactory to the Administrative Agent in light of legal permissibility and the policies and procedures of the Administrative Agent
and the Lenders for similarly situated companies (as reasonably determined by the Administrative Agent) and (b) collateral and security provisions reasonably acceptable to the Administrative Agent to be negotiated in good faith (such election
to so join the “Excluded Subsidiary Joinder Exception”); provided that the Borrower may elect to release (a “Guarantor Release Election”) any such Excluded Subsidiary (a “Released
Subsidiary”) from its obligations as a Guarantor in its sole discretion (so long as such release (i) shall be subject to the Borrower or its Restricted Subsidiaries having capacity to make an Investment in such Released Subsidiary
once it is no longer a Guarantor and shall be deemed an Investment in such Released Subsidiary, (ii) shall be subject to such Released Subsidiary having capacity to incur any Indebtedness or Liens once it is no longer a Guarantor and shall
constitute the incurrence at the time of release of such Released Subsidiary of any Indebtedness and Liens of such Released Subsidiary existing at such time and (iii) shall be subject to such Released Subsidiary not owning or exclusively
licensing (excluding exclusive licenses limited by territory or field of use) any Material Intellectual Property, other than any Material Intellectual Property owned or exclusively licensed by such Released Subsidiary prior to such Released
Subsidiary becoming a Guarantor) (it being understood and agreed that such right to elect to release any such Excluded Subsidiary in accordance with the immediately preceding clauses (i), (ii) and (iii) shall be in addition
to any other right to release any such Excluded Subsidiary from its obligations as a Guarantor pursuant to Section 10.24); provided further that to the extent any Foreign Subsidiary is joined pursuant to the Excluded
Subsidiary Joinder Exception, any requirements under this Collateral and Guarantee Requirement and any related provisions under the Loan Documents as applied to such Foreign Subsidiary (solely to the extent any such provision would not otherwise
have applied in respect of such Foreign Subsidiary if it were a Restricted Subsidiary that did not constitute a Loan Party) may be modified (including with respect to the addition of “agreed security principles” or other customary
limitations applicable to the provision of guarantees and collateral in the applicable non-U.S. jurisdiction and providing for the granting of collateral customary for secured financings in such non-U.S. jurisdiction) as reasonably determined by the Borrower and the Administrative Agent.
No
perfection through control agreements or perfection by “control” shall be required with respect to any assets (other than to the extent required under clause (4)(a)(i) above) under the Loan Documents. There shall be no requirement
to (1) obtain any landlord waivers, estoppels, collateral access letters or similar rights and agreements, (2) pledge any notes and/or other similar instruments evidencing Indebtedness in an amount less than $25,000,000, or
(3) perfect a security interest in any letter of credit rights, other than by the filing of a UCC financing statement.
“Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreements, each of
the collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent, Collateral Agent or the Lenders pursuant to Section 4.01(1)(c), 4.01(1)(d)(i),
6.11 or 6.12 and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.
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“Commitment” means a Revolving Commitment, Incremental Revolving
Commitment, Closing Date Term Loan Commitment, Incremental Term Commitment, Other Revolving Commitment, Other Term Loan Commitment, Extended Revolving Commitment of a given Extension Series, or any commitment in respect of Replacement Loans, as the
context may require.
“Commitment Fee Rate” means a percentage per annum equal to the Applicable Rate set forth
in clause (3) of the definition of “Applicable Rate”.
“Committed Loan Notice” means a written
notice of (1) a Borrowing with respect to a given Class of Loans, (2) a conversion of Loans of a given Class from one Type to the other or (3) a continuation of Term SOFR Loans of a given Class, pursuant to
Section 2.02(1), which, shall be substantially in the form of Exhibit A-1, or such other form as may be approved by the Administrative Agent and the Borrower (including any
form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent, appropriately completed and signed by a Responsible Officer of the Borrower).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended from time to time and any
successor statute.
“Compensation Period” has the meaning specified in Section 2.12(3)(b).
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Conforming Accounting Report” has the meaning specified in Section 6.01(1).
“Consolidated Interest Income” means all amounts set forth on an income statement of the Borrower and its Subsidiaries
prepared in accordance with GAAP for interest income for the Test Period ended on or most recently prior to such date of determination.
“Consolidated Interest Expense” means, with respect to any Person and its Subsidiaries, if any, for any period, the amount
of interest paid in cash with respect to Indebtedness as shown on such Person’s consolidated statement of cash flow in accordance with GAAP, as reduced by the amount of receipts pursuant to interest rate swap agreements, hedging arrangements
or similar derivative instruments or arrangements and as further reduced by the amount of costs associated with incurring or terminating Hedging Obligations and costs associated with breakage in respect of hedging agreements for interest rates.
“Consolidated Net Income” means, in respect of any period and as determined for any Person (the “Subject
Person”) on a consolidated basis, an amount equal to the sum of net income, determined in accordance with GAAP, but excluding:
(a) (i) the income of any person (other than a Restricted Subsidiary of the Subject Person), except to the extent of the amount
of dividends or distributions or other payments (including any ordinary course dividend, distribution or other payment) paid in cash (or to the extent converted into cash within 180 days after receipt) to the Subject Person or any of its Restricted
Subsidiaries by such Person during such period or (ii) the loss of any Person (other than a Restricted Subsidiary of the Subject Person), other than to the extent that the Subject Person or any of its Restricted Subsidiaries has contributed
Cash or Cash Equivalents to such Person in respect of such loss during such period,
(b) any gain or Charge attributable to
any asset disposition (including asset retirement costs and including abandonments of assets) or of returned surplus assets, in each case, outside the ordinary course of business,
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(c) (i) any gain or Charge from (A) any extraordinary item (as
determined in good faith by such Person) and/or (B) any nonrecurring or unusual item (as determined in good faith by such Person) and/or (ii) any Charge associated with and/or payment of any actual or prospective legal settlement, fine,
judgment or order,
(d) any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or
discontinued asset, property or operation (other than, at the option of the Borrower, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination thereof), (ii) any disposal, abandonment, divestiture and/or
discontinuation of any asset, property or operation (other than, at the option of the Borrower, relating to assets or properties held for sale or pending the divestiture or termination thereof) and/or (iii) any facility that has been closed
during such period,
(e) any net income or Charge (less all fees and expenses or charges related thereto) or write-off or amortization made of any deferred financing cost and/or premium paid or other Charge, in each case attributable to the early extinguishment of Indebtedness (and the termination of any associated Hedge
Agreement),
(f) (i) any Charge incurred as a result of, in connection with or pursuant to any profits interest plan,
equity incentive, stock option plan, other management equity plan, or any other management or employee benefit plan or agreement, any pension plan (including any post-employment benefic scheme which has been agreed with the relevant pension
trustee), any stock subscription or shareholder agreement, any employee benefit trust, any employment benefit scheme or any similar equity plan or agreement (including any deferred compensation arrangement) and (ii) any Charge incurred in
connection with the rollover, acceleration or payout of Capital Stock held by management of the Borrower and/or any Restricted Subsidiary, in each case under this subclause (ii), to the extent that any cash Charge is funded with net cash proceeds
contributed to the relevant Person as a capital contribution or as a result of the sale or issuance of Qualified Equity Interests (other than any amount included in the calculation of the Available Amount, a Cure Amount or an Excluded Contribution),
(g) any Charge that is established, adjusted and/or incurred, as applicable, (i) within eighteen (18) months
after the closing of any other acquisition, investment or asset sale that is required to be established, adjusted or incurred, as applicable, as a result of such acquisition in accordance with GAAP or (ii) as a result of any change in, or the
adoption or modification of, accounting principles and/or policies in accordance with GAAP,
(h) (A) the effects of
adjustments (including the effects of such adjustments pushed down to the relevant Person and its Restricted Subsidiaries) in such Person’s consolidated financial statements in component amounts required or permitted by GAAP (including,
without limitation, in the inventory, property and equipment, leases, rights fee arrangements, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced billing and
debt line items thereof), resulting from the application of purchase accounting in relation to any consummated acquisition or recapitalization accounting or the amortization or write-off of any amounts
thereof, net of Taxes, and (B) the cumulative effect of changes in, or the adoption or modification of, accounting principles or policies made in such period in accordance with GAAP which affect Consolidated Net Income (except that, if the
Borrower determines in good faith that the cumulative effects thereof are not material to the interests of the Lenders, the effects of any change, adoption or modification of any such principles or policies may be included in any subsequent period
after the fiscal quarter in which such change, adoption or modification was made), and
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(i) any realized or unrealized gain or loss in respect of (x) any
obligation under any Hedge Agreement not entered into for speculative purposes as determined in accordance with GAAP and/or (y) any other derivative instrument pursuant to, in the case of this clause (y), Financial Accounting Standards
Board’s Accounting Standards Codification No. 815-Derivatives and Hedging, (ii) any realized or unrealized foreign currency exchange gain or loss (including any currency re-measurement of Indebtedness, any net gain or loss resulting from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction or any
other currency-related risk); provided, that notwithstanding anything to the contrary herein, realized gains and losses in respect of any interest rate swap agreements, hedging arrangements or similar derivative instruments or arrangements
shall be included in the calculation of Consolidated Net Income.
“Contingent Obligations” means, with respect to any
Person, any obligation of such Person guaranteeing any leases, dividends or other monetary obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, 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 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.
“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.
“Controlled
Investment Affiliate” means, as to any Person, any other Person, other than any Investor, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any
Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Borrower or other companies.
“Convertible Indebtedness” means Indebtedness of the Borrower (which may be guaranteed by the Guarantors) permitted to be
incurred hereunder that is either (1) convertible into common equity of the Borrower (and cash in lieu of fractional shares) or cash (in an amount determined by reference to the price of such common equity) or (2) sold as units with call
options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common equity of the Borrower or cash (in an amount determined by reference to the price of such common equity).
“Core Earnings” means, in respect of any period and as determined for the Borrower and the Restricted Subsidiaries on a
consolidated basis, an amount equal to the sum of net income, determined in accordance with GAAP, attributable to the holders of the Borrower’s Capital Stock, including any realized gains and losses not otherwise included under GAAP, but
excluding:
(1) non-cash equity compensation expense,
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(2) incentive compensation owed to the Manager pursuant to any management
agreement in place from time to time between the Borrower and the Manager,
(3) depreciation and amortization,
(4) any unrealized gain or losses or other non-cash items included in net income,
(5) one-time events pursuant to changes in GAAP and certain non-cash charges or expense items, in each case, as determined by the Manager and approved by a majority of the independent directors of the Borrower, and
(6) any amounts attributable to Unrestricted Subsidiaries except to the extent distributed to the Borrower or a Restricted
Subsidiary in Cash.
“Corrective Extension Amendment” has the meaning specified in
Section 2.16(6).
“Covered Affiliate” has the meaning specified in
Section 10.01(5)(a).
“Covered Entity” means any of the following:
(1) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(2) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or
(3) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b).
“Covered Party” has the meaning specified in Section 10.26.
“CRE Finance Assets” means (1) any commercial real estate loans and/or interests therein (including, without
limitation, any commercial mortgage backed securities, collateralized loan obligations, mezzanine interests, senior and junior notes and participation interests with respect to any of the foregoing), (2) any rights, assets or investments similar to
or derivative of, any item referred to in the foregoing clause (1) and/or the origination, acquisition, financing, servicing or administration thereof (regardless of whether or not the Borrower or any of its restricted subsidiaries owns
or originated the applicable commercial real estate loan or direct or indirect interest therein) and (3) Capital Stock in any person substantially all of whose assets, directly or indirectly, are comprised of one or more of the items referred
to in the foregoing clauses (1) and/or (2)). For the avoidance of doubt, no Real Estate Investment shall constitute a CRE Finance Asset.
“CRE Financing” shall mean any indebtedness or obligations principally secured directly or indirectly by, and incurred for
the primary purpose of directly or indirectly funding the acquisition of, or any investment in, or otherwise financing, refinancing or capitalizing any previous acquisition of, or investment in, Real Estate Investments and/or interests therein
(including, for the avoidance of doubt, any mezzanine financing secured by capital stock in subsidiaries that directly or indirectly own Real Estate Investments).
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“Credit Agreement Refinanced Debt” has the meaning assigned to such term
in the definition of “Credit Agreement Refinancing Indebtedness”.
“Credit Agreement Refinancing
Indebtedness” means (1) Permitted Equal Priority Refinancing Debt, (2) Permitted Junior Priority Refinancing Debt or (3) Permitted Unsecured Refinancing Debt;
provided that, in each case, such Indebtedness is issued, incurred or otherwise obtained (including by means of the extension or
renewal of existing Indebtedness) to Refinance, in whole or in part, existing Loans (or, if applicable, unused Commitments) or any then-existing Credit Agreement Refinancing Indebtedness (“Credit Agreement Refinanced Debt”);
provided, further, that,
(a) the terms of any such Indebtedness (excluding, for the avoidance of doubt, interest rates (including through fixed interest
rates), interest margins, rate floors, fees, funding discounts, original issue discounts and prepayment or redemption premiums and terms) shall, at the option of the Borrower,
(i) reflect market terms and conditions (taken as a whole) at the time of incurrence thereof (including, for the avoidance of
doubt, at the time of entering into any definitive documentation with respect to such Indebtedness or the applicable LCT Test Date) as determined by the Borrower in good faith,
(ii) if otherwise not consistent with the terms of such Credit Agreement Refinanced Debt, not be materially more restrictive to
the Borrower (as determined by the Borrower in good faith), when taken as a whole, than the terms of such Credit Agreement Refinanced Debt, except, in each case under this clause (ii), with respect to
(A) covenants and other terms applicable to any period after the Latest Maturity Date of the Credit Agreement Refinanced Debt
or
(B) a Previously Absent Financial Maintenance Covenant (so long as, (I) to the extent that such Indebtedness
includes a Previously Absent Financial Maintenance Covenant that is in effect prior to the Latest Maturity Date of the Closing Date Revolving Facility and consists solely of a revolving credit facility (whether or not the documentation therefor
includes any other facilities) and the applicable Previously Absent Financial Maintenance Covenant is included only for the benefit of such revolving credit facility, such Previously Absent Financial Maintenance Covenant shall be included for the
benefit of the Closing Date Revolving Facility and (II) to the extent that such Indebtedness includes a Previously Absent Financial Maintenance Covenant that is in effect prior to the Latest Maturity Date of the Closing Date Term Loans and does
not consist solely of a revolving credit facility (whether or not the documentation therefor includes any other facilities), such Previously Absent Financial Maintenance Covenant shall be included for the benefit of the Closing Date Term Loans) or
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(iii) such terms shall be reasonably satisfactory to the Administrative
Agent
(provided that, at the Borrower’s election, to the extent any term or provision is added for the
benefit of (x) the lenders of any such Indebtedness that consists of term facilities, no consent shall be required from the Administrative Agent (or any Lender) to the extent that such term or provision is also added, or the features of such
term or provision are provided, for the benefit of the Closing Date Term Loans or (y) the lenders of any such Indebtedness that consists of revolving credit facilities, no consent shall be required from the Administrative Agent or any Lender to
the extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the Lenders of the Closing Date Revolving Facility),
(b) except in the case of any Permitted Earlier Maturity Debt, any such Indebtedness shall have:
(i) a maturity date that is no earlier than the earlier of (A) the maturity date of the Credit Agreement Refinanced Debt
and (B) the Latest Maturity Date of (in the case of Credit Agreement Refinancing Indebtedness consisting of revolving credit facilities) the Closing Date Revolving Facility or (in the case of Credit Agreement Refinancing Indebtedness consisting
of term facilities) the Closing Date Term Loans and
(ii) if the Credit Agreement Refinancing Indebtedness consists of term
facilities, a Weighted Average Life to Maturity equal to or greater than the lesser of (A) the Weighted Average Life to Maturity of the Credit Agreement Refinanced Debt and (B) the Weighted Average Life to Maturity of the Closing Date Term
Loans, in each case as of the date of determination,
(c) such Indebtedness shall not have a greater principal amount (or
shall not have a greater accreted value, if applicable) than the principal amount (or accreted value, if applicable) of the Credit Agreement Refinanced Debt plus accrued interest, fees and premiums (including tender premium) and penalties (if
any) thereon and fees, expenses, original issue discount and upfront fees incurred in connection with such Refinancing plus the amount of any other Indebtedness permitted under one or more other Baskets under
Section 7.02 (which shall be deemed a utilization of any such Baskets); provided, that, with respect to additional Indebtedness incurred by reference to Section 7.02, (x) such indebtedness
shall satisfy the other requirements of this definition and (y) if such indebtedness is secured, the Lien securing such Indebtedness shall satisfy the applicable requirements of Section 7.01, and
(d) such Credit Agreement Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees
and premiums (if any) in connection therewith shall be paid, within five (5) Business Days after the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained with the Net Proceeds received from the incurrence or
issuance of such Indebtedness;
provided, further, that “Credit Agreement Refinancing Indebtedness” may be
incurred in the form of a bridge or other interim credit facility intended to be Refinanced with (or which converts into or is exchanged for) long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy
clause (b) of the second proviso in this definition so long as (a) such credit facility includes customary “rollover” provisions and (b) assuming such credit facility were to be extended pursuant to such
“rollover” provisions, such extended credit facility would comply with clause (b) of the second proviso in this definition) and in which case, on or prior to the first anniversary of the incurrence of such
“bridge” or other interim credit facility, nothing in this definition shall prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.
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“Credit Extension” means each of the following: (1) a Borrowing and
(2) an L/C Credit Extension.
“Cure Amount” has the meaning specified in
Section 8.04(1).
“Cure Expiration Date” has the meaning specified in
Section 8.04(1)(a).
“Cured Default” has the meaning specified in
Section 1.02(9).
“Customary Recourse Exceptions” means, with respect to any Non-Recourse Indebtedness, exclusions from the exculpation provisions with respect to such Non-Recourse Indebtedness such as fraud, misapplication of cash, voluntary
bankruptcy, environmental claims, breach of representations and warranties, failure to pay taxes and insurance, as applicable, and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in
separate indemnification agreements in non-recourse financings of commercial real estate.
“Debt Fund Affiliate” means any Affiliate of the Investor (other than a natural Person, the Borrower or any of its
Subsidiaries) that is a bona fide debt fund or investment vehicle 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 or securities in the ordinary course, in each case with respect to which the Persons making such investment decisions for such applicable Affiliate are not primarily engaged in the making, acquiring or holding of equity
investments in the Borrower or any of its Subsidiaries.
“Debt Representative” means, with respect to any series of
Indebtedness, the trustee, administrative agent, collateral agent, security agent or similar agent or representative under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be,
and each of their successors in such capacities.
“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(2)(f).
“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.
“Default Rate” means an interest rate equal to
(1) the Base Rate plus (2) the Applicable Rate applicable to Base Rate Loans that are Revolving Loans plus (3) 2.00% per annum; provided that with respect to the outstanding principal amount of any Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan (giving effect to Section 2.02(3)) plus 2.00% per annum, in each case, to the
fullest extent permitted by applicable Laws.
“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.
“Defaulting Lender”
means, subject to Section 2.17(2), any Lender that (1) has refused (which refusal may be given verbally or in writing and has not been retracted) or failed to perform any of its funding obligations hereunder, including
in respect of its Loans or participations in respect of L/C Obligations, within one (1) Business Day of the date required to be funded by it hereunder, unless, in the case of this clause (1), such Lender notifies the Administrative Agent and
the Borrower in writing that such failure is the result of such Lender’s reasonable and good faith determination that one or more conditions precedent
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to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (2) has failed to pay over to
the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless the subject of a good faith dispute, (3) has notified the Borrower
or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or generally under other agreements in which it commits to
extend credit, (4) has failed, within three (3) Business Days after request by the Administrative Agent or the Borrower, to confirm in a manner satisfactory to the Administrative Agent or the Borrower, as applicable, that it will comply
with its funding obligations or (5) has, or has a direct or indirect parent company that has, either (a) admitted in writing that it is insolvent or (b) become subject to a Lender-Related Distress Event. Any determination by the
Administrative Agent as to whether a Lender is a Defaulting Lender shall be conclusive absent manifest error.
“Derivative
Transaction” means (1) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or floor) and any other instrument linked to interest rates that
gives rise to similar credit risks (including when-issued securities and forward deposits accepted), (2) any exchange-rate transaction, including any cross-currency interest- rate swap, any forward foreign-exchange contract, any currency option and
any other instrument linked to exchange rates that gives rise to similar credit risks, (3) any equity derivative transaction, including any equity-linked swap, any equity-linked option, any forward equity-linked contract and any other
instrument linked to equities that gives rise to similar credit risk and (4) any commodity (including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked
contract and any other instrument linked to commodities that gives rise to similar credit risks; provided, that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors,
officers, employees, members of management, managers or consultants of the Borrower or its Subsidiaries shall be a Derivative Transaction.
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant
to an Officer’s Certificate, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or repurchase of, or collection or payment on, such Designated
Non-Cash Consideration.
“Designated Preferred Stock” means Preferred Stock of
the Borrower, any Restricted Subsidiary or any Parent Company (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any
of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on or promptly after the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause
(b) of Section 7.05(1).
“Designated Revolving Commitments” means any commitments to
make loans or extend credit on a revolving basis (or delayed draw basis) to the Borrower or any Restricted Subsidiary by any Person other than the Borrower or any Restricted Subsidiary that have been designated in an Officer’s Certificate
delivered to the Administrative Agent as “Designated Revolving Commitments” until such time as the Borrower subsequently delivers an Officer’s Certificate to the Administrative Agent to the effect that such commitments will no
longer constitute “Designated Revolving Commitments”; provided that, during such time (including at the time of the incurrence of such Designated Revolving Commitments), (1) except for purposes of the definition of
“Applicable Rate” and determining actual compliance with the Financial Covenants, such Designated Revolving Commitments will be deemed an incurrence of Indebtedness on such date and will be deemed outstanding for purposes of calculating
the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio, the Interest Coverage Ratio, and the availability of any Baskets
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hereunder and (2) commencing on the date such Designated Revolving Commitments are established after giving pro forma effect to the incurrence of the entire committed amount of the
Indebtedness thereunder (but without netting any cash proceeds thereof), such committed amount under such Designated Revolving Commitments may thereafter be borrowed (and reborrowed, if applicable), in whole or in part, from time to time, without
further compliance with any Basket or financial ratio or test under this Agreement.
“Discharge” means, with respect to
any Indebtedness, the repayment, prepayment, repurchase (including pursuant to an offer to purchase), redemption, defeasance or other discharge of such Indebtedness, in any such case in whole or in part.
“Discount Prepayment Accepting Lender” has the meaning assigned to such term in
Section 2.05(1)(e)(B)(II).
“Discount Range” has the meaning assigned to such term in
Section 2.05(1)(e)(C)(I).
“Discount Range Prepayment Amount” has the meaning assigned to
such term in Section 2.05(1)(e)(C)(I).
“Discount Range Prepayment Notice” means a written
notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(1)(e)(C)(I) substantially in the form of Exhibit J or any other form acceptable to the Borrower and the
Administrative Agent.
“Discount Range Prepayment Offer” means the written offer by a Lender, substantially in the form
of Exhibit K, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment Response Date” has the meaning assigned to such term in
Section 2.05(1)(e)(C)(I).
“Discount Range Proration” has the meaning assigned to such term
in Section 2.05(1)(e)(C)(III).
“Discounted Prepayment Determination Date” has the meaning
assigned to such term in Section 2.05(1)(e)(D)(III).
“Discounted Prepayment Effective Date”
means in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the Specified Discount
Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(1)(e)(B),
Section 2.05(1)(e)(C) or Section 2.05(1)(e)(D), respectively, unless a shorter period is agreed to between the Borrower and the Auction Agent.
“Discounted Term Loan Prepayment” has the meaning assigned to such term in Section 2.05(1)(e)(A).
“disposition” has the meaning set forth in the definition of “Asset Sale”.
“Disqualified Institution” means (1) those particular banks, financial institutions, other institutional lenders and
other Persons that were identified in writing by or on behalf of the Borrower or the Manager to the Lead Arrangers prior to the Closing Date (or, on or after the Closing Date, that are identified in writing by or on behalf of the Borrower or the
Manager to, and with the consent
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(not to be unreasonably withheld, conditioned or delayed) of, the Administrative Agent (without retroactive effect for prior or pending assignments or participations (solely to the extent such
assignment or participation was made in compliance with the applicable requirements in Section 10.07)), (2) any competitor of the Borrower or its Subsidiaries and any Affiliate of such competitors that are identified in
writing by or on behalf of the Borrower or the Manager to the Lead Arrangers prior to the Closing Date (which list may be updated on or after the Closing Date upon written notice to the Administrative Agent without retroactive effect for prior or
pending assignments or participations (solely to the extent such assignment or participation was made in compliance with the applicable requirements in Section 10.07)), (3) any competitor of the Manager and any Affiliate of
any such competitor that (a) is identified in writing by or on behalf of the Borrower or the Manager to the Administrative Agent on or after the Closing Date (without retroactive effect for prior or pending assignments or participations (solely
to the extent such assignment or participation was made in compliance with the applicable requirements in Section 10.07)) and (b) has a debt platform (or an affiliated debt platform) that the Manager reasonably
believes does not have sufficient customary barriers in place regarding not sharing information with Affiliates that are competitors of the Manager as of such date of designation pursuant to clause (3)(a) above (including, for each of the
foregoing Persons described in this clause (3), their respective Affiliates (other than Affiliates that constitute bona fide diversified debt funds primarily dealing in loans that represent in their respective marketing materials that they do
not share information with their Affiliates that are competitors of the Manager), that are (i) reasonably identifiable as such on the basis of their name or otherwise commonly known by financial institutions that act as arrangers or agents in
similar credit facilities or by investors in similar loans or otherwise identified in writing to the Administrative Agent by or on behalf of the Borrower or the Manager to be an Affiliate or (ii) otherwise identified in writing to the
Administrative Agent to be an Affiliate), (4) any Affiliate (other than Affiliates that constitute bona fide diversified debt funds primarily dealing in loans) of the Persons described in the preceding clauses (1) or (2) that are
either (a) reasonably identifiable or associated as such on the basis of their name or otherwise identified in writing to the Administrative Agent by or on behalf of the Borrower or the Manager to be an Affiliate or (b) identified as such
in writing to the Administrative Agent by or on behalf of the Borrower or the Manager and (5) any Excluded Affiliate; provided that any Person that is a Lender or Participant (or a pending Lender or Participant pursuant to an assignment
or participation made in compliance with Section 10.07) and subsequently becomes a Disqualified Institution (but was not a Disqualified Institution at the time it became a Lender or a Participant or the time the prior or
pending assignment or participation was made (solely to the extent such assignment or participation was made in compliance with the applicable requirements of Section 10.07), as applicable) shall be deemed to not be a
Disqualified Institution hereunder (solely with respect to the Loans, Commitments or participations acquired by such Person or subject to a pending assignment or participation (solely to the extent such assignment or participation was made in
compliance with the applicable requirements of Section 10.07) prior to such Person becoming a Disqualified Institution). The identity of Disqualified Institutions shall be deemed “Information” for purposes of
Section 10.09 and may be communicated by the Administrative Agent to a Lender upon request, but will not be otherwise posted or distributed to any Person.
“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 redeemable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than (1) for any Qualified Equity Interests or (2) solely as a
result of a change of control, asset sale, casualty, condemnation or eminent domain) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than (1) for any Qualified Equity Interests or
(2) solely as a result of a change of control, asset sale, casualty, condemnation or eminent domain), in whole or in part, in each case prior to the date ninety-one (91) days after the earlier of the
then Latest Maturity Date or the date the Loans are no longer outstanding and the Commitments have been terminated; provided that if such Capital Stock is issued pursuant to any plan for the benefit of future, current or former employees,
directors, officers, members of management, consultants or independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members or any permitted transferees thereof) of the Borrower
29
or its Subsidiaries or any Parent Company or by any such plan to such employees, directors, officers, members of management, consultants or independent contractors (or their respective Controlled
Investment Affiliates or Immediate Family Members or any permitted transferees thereof), such Capital Stock will not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to
satisfy applicable statutory or regulatory obligations or as a result of such employee’s, director’s, officer’s, management member’s, consultant’s or independent contractor’s termination, death or disability;
provided further any Capital Stock held by any future, current or former employee, director, officer, member of management, consultant or independent contractor (or their respective Controlled Investment Affiliates or Immediate Family
Members or any permitted transferees thereof) of the Borrower, any of its Subsidiaries, any Parent Company, or any other Person in which the Borrower 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), in each case pursuant to any equity subscription or equity holders’ agreement, management equity plan or stock option plan or any other management or
employee benefit plan or agreement will not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or any Subsidiary in order to satisfy applicable statutory or regulatory obligations or as a result of such
employee’s, director’s, officer’s, management member’s, consultant’s or independent contractor’s termination, death or disability. For the purposes hereof, the aggregate principal amount of Disqualified Stock will
be deemed to be equal to the greater of its voluntary or involuntary liquidation preference and maximum fixed repurchase price, determined on a consolidated basis in accordance with GAAP, and the “maximum fixed repurchase price” of any
Disqualified Stock that does not have a fixed repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were purchased on any date on which the Total Indebtedness or Total Senior
Indebtedness, as applicable, will be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock, such fair market value shall be determined in good faith by
the Borrower.
“Distressed Agent” shall have the meaning provided in the definition of the term “Agent-Related
Distress Event”.
“Distressed Person” shall have the meaning provided in the definition of the term
“Lender-Related Distress Event”.
“Divided LLC” means any LLC formed upon the consummation of an LLC
Division.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any direct or indirect Subsidiary of the Borrower that is organized under the Laws of the
United States, any state thereof or the District of Columbia.
“EEA Financial Institution” means (1) any credit
institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (2) any entity established in an EEA Member Country which is a parent of an institution described in
clause (1) of this definition or (3) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (1) or (2) 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.
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“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.
“Eligible Assignee” has the meaning specified in Section 10.07(1).
“EMU” means the economic and monetary union as contemplated in the Treaty on European Union.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and sub-surface strata, sediments and natural resources such as wetlands, flora and fauna.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand,
abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (1) pursuant to or in connection with any actual or alleged violation of any Environmental Law, (2) in
connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity or (3) in connection with any actual or alleged damage, injury, threat or harm to the Environment.
“Environmental Laws” means any and all Laws relating to pollution or the protection of the Environment or, to the extent
relating to exposure to hazardous materials, worker health and safety.
“Environmental Liability” means any liability
(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of its Restricted Subsidiaries resulting from or based upon (1) violation of or
non-compliance with any Environmental Law, (2) the generation, use, handling, management, transportation, storage, treatment or disposal of any Hazardous Materials, (3) exposure to any Hazardous
Materials, (4) the Release or threatened Release of any Hazardous Materials or (5) any contract or other written agreement to the extent liability is assumed or imposed with respect to any of the foregoing.
“Equal Priority Intercreditor Agreement” means, to the extent executed in connection with the incurrence of Indebtedness
secured by Liens on the Collateral which are intended to rank equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), at the option of the Borrower,
either (1) an intercreditor agreement substantially in the form of Exhibit G-1 or (2) a customary intercreditor agreement in form and substance reasonably acceptable to the Administrative
Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without
regard to the control of remedies), in each case with respect to clauses (1) and (2) above, with such modifications thereto as the Administrative Agent and the Borrower may agree.
“Equity Interests” means, with respect to any Person, the Capital Stock of such Person and all warrants, options or other
rights to acquire Capital Stock of such Person, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock of such Person.
“Equity Offering” means any public or private sale of common Equity Interests or Preferred Stock of the Borrower or any
Parent Company (excluding Disqualified Stock), other than:
(1) public offerings with respect to the Borrower’s or
any Parent Company’s common equity registered on Form S-4 or Form S-8;
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(2) issuances to any Restricted Subsidiary of the Borrower’s or any
Parent Company’s Equity Interests or Preferred Stock; and
(3) any such public or private sale that constitutes an
Excluded Contribution.
“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 together with the Borrower is
treated as a single employer within the meaning of Section 414(b) or (c) of the Code (and, solely with respect to Section 412 of the Code, within the meaning of Section 414(m) or (o) of the Code).
“ERISA Event” means (1) a Reportable Event with respect to a Pension Plan, (2) a withdrawal by the Borrower or
any of their respective ERISA Affiliates 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, (3) a complete or partial withdrawal by the Borrower or any of their respective ERISA Affiliates from a Multiemployer Plan or written notification is provided to the Borrower or
any of their respective ERISA Affiliates concerning the imposition of Withdrawal Liability, (4) written notification that a Multiemployer Plan is “insolvent” (within the meaning of Section 4245 of ERISA) or has been determined
to be in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), (5) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension
Plan, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement in writing of proceedings by the PBGC to terminate a Pension Plan, (6) the imposition of any
liability under Title IV of ERISA, other than for the payment of PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any of their respective ERISA Affiliates, (7) 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, (8) a failure to satisfy the minimum funding standard (within the meaning of Section 302 of ERISA or
Section 412 of the Code) with respect to a Pension Plan, whether or not waived, (9) the application for a minimum funding waiver under Section 302(c) of ERISA with respect to a Pension Plan, (10) the imposition of a lien under
Section 303(k) of ERISA or Section 430(k) of the Code with respect to any Pension Plan, (11) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 303 of ERISA or Section 430
of the Code) or (12) the occurrence of an event, transaction or failure that results in or would reasonably be expected to result in liability to the Borrower under Title I of ERISA or a tax under any of Sections 4971 through 5000 of the Code.
“Erroneous Payment” has the meaning specified in Section 9.18(1).
“Escrow” has the meaning specified in the definition of “Indebtedness”.
“Escrowed Obligations” has the meaning specified in the definition of “Indebtedness”.
“Escrowed Proceeds” means the proceeds from the offering of any debt securities or other Indebtedness paid into an escrow
account with an independent escrow agent on the date of the applicable offering or incurrence pursuant to escrow arrangements that permit the release of amounts on deposit in such escrow account upon satisfaction of certain conditions or the
occurrence of certain events (and, without duplication, shall include the proceeds of any Escrowed Obligations held in Escrow). The term “Escrowed Proceeds” shall include any interest earned on the amounts held in escrow.
32
“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.
“Euro” or “euro” means the single currency of participating member states of the EMU.
“Event of Default” has the meaning specified in Section 8.01.
“Excess Availability” means, as of any date of determination, the difference of (1) the Revolving Commitments at such
date minus (2) the sum of (a) the outstanding Dollar Amount of all Revolving Loans as of such date, plus (b) the outstanding Dollar Amount of all Swingline Loans and L/C Obligations as of such date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
“Excluded Affiliate” has the meaning specified in Section 10.09.
“Excluded Assets” means, subject to the Excluded Subsidiary Joinder Exception,
(1) Excluded Real Property,
(2) motor vehicles, airplanes and other assets subject to certificates of title, except to the extent a security interest therein can be
perfected by the filing of a UCC financing statement,
(3) all commercial tort claims,
(4) any governmental or regulatory licenses, authorizations, certificates, charters, franchises, approvals and consents (whether Federal,
State, or otherwise) to the extent a security interest therein is prohibited or restricted thereby or requires any consent, acknowledgment or authorization from a Governmental Authority not obtained (without any requirement to obtain such consent,
acknowledgment or authorization) other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition,
(5) assets to the extent the pledge thereof or grant of security interests therein (a) is prohibited or restricted by any applicable Law,
rule or regulation or would require any consent, approval or authorization of any governmental or regulatory authority not obtained (without any requirement to obtain any such consent, approval or authorization) after giving effect to the applicable
anti-assignment provisions of the UCC and other applicable Law (other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition), (b) would cause the destruction,
invalidation or abandonment of such asset under applicable Law (solely with respect to any IP Rights) or (c) is prohibited by any contract or would require any consent, approval, license or other authorization of any third party (other than the
Borrower or its Subsidiaries) (provided, that such requirement existed on the Closing Date or at the time of the acquisition of such asset, as applicable, and was not incurred in contemplation thereof (other than in the cases of capital
leases, purchase money financings or any Asset Financing Facility or CRE Financing with respect to (i) the relevant CRE Finance Assets or Real Estate Investments, as applicable, (ii) any corresponding Financing Equity and (iii) other
assets ancillary to such CRE Finance Asset or Real Estate Investments owned by the Financing SPE Subsidiary under such Asset Financing Facility or CRE Financing, as applicable), financed by such Asset Financing Facility or CRE Financing, as
applicable, and any corresponding Financing Equity)) or governmental or regulatory authority not obtained (without any requirement to obtain such consent, approval, license or other authorization), other than to the extent such prohibition or
restriction is ineffective under the UCC and other applicable Law,
33
(6) margin stock and Equity Interests in any Person that is not the Borrower or a wholly
owned Material Subsidiary of the Borrower that is a Restricted Subsidiary,
(7) Equity Interests in Excluded Subsidiaries (other than
Excluded Subsidiaries solely pursuant to clause (2) or (3) of the definition of “Excluded Subsidiaries” that are directly owned by a Loan Party) (provided that if a pledge of the Equity Interests in any first-tier Foreign
Subsidiary or Foreign Subsidiary Holdco is required pursuant to this Agreement, the pledge of the Equity Interests of such Subsidiary shall be limited to no more than 65.0% of the total issued and outstanding Equity Interests of such Foreign
Subsidiary or Foreign Subsidiary Holdco, as applicable, and no pledge of the Equity Interests of any other Foreign Subsidiary or Foreign Subsidiary Holdco shall be required) and Immaterial Subsidiaries and Indebtedness issued by Excluded
Subsidiaries,
(8) any lease, license, sublicense or agreement (not otherwise subject to clause (5) above) or any property that is
subject to a capital lease, purchase money security interest or similar arrangement, in each case permitted by this Agreement, to the extent that a grant of a security interest therein (a) would violate or invalidate such lease, license,
sublicense or agreement or purchase money security interest or similar arrangement or create a right of termination in favor of any other party thereto (other than the Borrower or any of its Subsidiaries) after giving effect to the applicable
anti-assignment provisions of the UCC and other applicable Law (other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition) or (b) would require governmental
or regulatory approval, consent or authorization not obtained (without any requirement to obtain such approval, consent or authorization), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the
UCC notwithstanding such prohibition,
(9) (a) cash and Cash Equivalents, except to the extent constituting identifiable proceeds of
Collateral a security interest in which is perfected by the filing of an “all assets” UCC financing statement by the Administrative Agent or automatically without any further action or filing by the Administrative Agent and
(b) deposit, securities, commodities and other accounts, securities entitlements and related assets,
(10) letter of credit rights,
except to the extent consisting of supporting obligations for other Collateral, a security interest in which can be perfected by the filing of an “all assets” UCC financing statement,
(11) any intent-to-use trademark applications filed in the
United States Patent and Trademark Office, pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. Section 1051, prior to the accepted filing of a “Statement of Use” and issuance of a “Certificate of Registration”
pursuant to Section 1(d) of the Lanham Act or an accepted filing of an “Amendment to Allege Use” whereby such intent-to-use trademark application is
converted to a “use in commerce” application pursuant to Section 1(c) of the Lanham Act,
(12) assets where the burden or
cost (including any adverse tax consequences to the Borrower, any Parent Company or any Subsidiary) of obtaining a security interest therein or perfection thereof exceeds the practical benefit to the Lenders afforded thereby as reasonably determined
by the Borrower in consultation with the Administrative Agent,
(13) any assets to the extent a security interest in such assets or
perfection thereof would result in adverse tax consequences to the Borrower, any Parent Company or any Subsidiary or any of its or their respective holders of Equity Interests as determined by the Borrower in good faith, in consultation with the
Administrative Agent,
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(14) any assets located, registered or applied-for
in, or governed by, any non-U.S. jurisdiction law, regulation or agreement (other than (a) Equity Interests and intercompany debt of Foreign Subsidiaries otherwise required to be pledged pursuant to the
Collateral Documents and (b) assets that can be perfected by the filing of a UCC financing statement), including any IP Rights located, issued, registered or applied-for in a non-U.S. jurisdiction,
(15) (a) client, customer, trust or other third party funds or assets,
(b) assets held for the purpose of honoring payment instruments, customer fund transfers, stored value obligations and other regulated outstanding liabilities (including any outstanding liabilities that would be regulated but for an exemption
to a jurisdiction’s money transmission law or the absence of an applicable money transmission law) in the course of engaging in any activity as a regulated or exempt money transmitter, including assets in the form of monies, receivables or
investments commonly referred to under applicable laws as “eligible securities” or “permissible investments”, (c) any cash (including ACH in transit), cash equivalents, receivables, or other assets that are received, held, or
transmitted by a Loan Party solely in its capacity as a processor, agent, or custodian for the benefit of third parties in connection with the provision of remittance, bill payment or other payment processing services, and (d) any accounts
holding the foregoing, but only to the extent such accounts hold solely the foregoing,
(16) any accounts receivable and related assets
that are purported to be sold or disposed of in connection with any factoring, Receivables Financing Transaction, Securitization Facility or similar arrangements permitted under the Loan Documents,
(17) any property or assets subject to any Asset Financing Facility or CRE Financing (including, without limitation, any Asset Financing
Facility or CRE Financing existing on the Closing Date or established from time to time after the Closing Date) (including, without limitation, to the extent required in order to obtain, or prohibited under, the applicable Asset Financing Facility
or CRE Financing, any equity interests in any Financing SPE Subsidiaries and any direct or indirect parent thereof, in each case directly owned by any Loan Party), and
(18) Indebtedness owed by Excluded Subsidiaries.
“Excluded Contribution” means net cash proceeds or the fair market value of marketable securities or the fair market value
of Qualified Proceeds received by the Borrower from:
(1) contributions to its common equity capital;
(2) dividends, distributions, fees and other payments from any joint ventures that are not Restricted Subsidiaries; and
(3) the sale (other than to the Borrower or a Restricted Subsidiary or to any management equity plan or stock option plan or
any other management or employee benefit plan or agreement of the Borrower) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Borrower;
in each case, designated as Excluded Contributions pursuant to an Officer’s Certificate and that are excluded from the calculation set forth in clause
(b) of Section 7.05(1); provided that Excluded Contributions shall not include Cure Amounts.
35
“Excluded Information” has the meaning specified in the definition of
“Big Boy Letter”.
“Excluded Lender” has the meaning specified in
Section 10.01(5)(b).
“Excluded Real Property” means
(i) any leasehold interest in real property (including, without limitation, any ground lease) and, except to the extent a
security interest therein can be perfected by the filing of a UCC-1 financing statement, leasehold interests in all other assets (it being understood there shall be no requirement to obtain any landlord
waivers, estoppels or collateral access letters),
(ii) (a) any
fee-owned real property that is not a Material Real Property,
(b) any fee-owned real property not used for operational purposes (including, for the avoidance of doubt, any real property (i) subject to a sale-leaseback, ground lease or other long-term net lease, (ii) acquired
in connection with a foreclosure or other exercise of remedies under any Asset Financing Facility or CRE Finance Asset or (iii) which is to become subject to any Asset Financing Facility or CRE Financing), and
(c) any fee-owned real property (whether already mortgaged, or is required or intended
to be mortgaged, at any time of determination) located in a flood hazard area or such property or mortgage thereon would be subject to any flood insurance due diligence, flood insurance requirements or compliance with any flood insurance laws;
provided, that (A) if it is subsequently determined that any property subject to, or otherwise required or intended
to be subject to, a mortgage is or might be located in a flood hazard area, (I) such property shall be deemed to constitute an Excluded Asset until a determination is made that such property is not located in a flood hazard area and does not
require flood insurance, and (II) if there is an existing mortgage on such property, such mortgage shall be released if located in a special flood hazard area and would require flood insurance or (B) if it cannot be determined whether such
fee owned real property is located in a special flood hazard area or would require flood insurance and the time or information necessary to make such determination would (as determined by the Borrower in good faith) delay or impair the intended date
of funding any loan or effectiveness of any amendment or supplement under the Loan Documents, the clauses (A)(I) and (II) of this proviso shall also apply.
“Excluded Subsidiaries” means all of the following and “Excluded Subsidiary” means any of them (in each
case, subject to the Excluded Subsidiary Joinder Exception):
(1) any Subsidiary that is not a direct, wholly owned
Subsidiary of the Borrower or a Subsidiary Guarantor,
(2) any Foreign Subsidiary,
(3) any Foreign Subsidiary Holdco,
(4) any Subsidiary of any (a) Foreign Subsidiary or (b) Foreign Subsidiary Holdco,
(5) any Subsidiary (including any regulated entity that is subject to net worth or net capital or similar capital and surplus
restrictions),
36
(a) that is prohibited or restricted from providing a Guaranty
by:
(i) applicable Law,
(ii) Contractual Obligation (including in respect of assumed Indebtedness permitted hereunder and not created in contemplation
of the applicable investment or acquisition) existing on the Closing Date (or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the Closing Date (and so long as such Contractual Obligation was not incurred in
contemplation of such investment or acquisition), on the date such Subsidiary is so acquired), and/or
(iii) with respect
to any Restricted Subsidiary owning, directly or indirectly, the relevant CRE Finance Assets or Real Estate Investments, as applicable, financed thereby, or the corresponding Financing Equity and, notwithstanding anything in clause
(ii) above to the contrary, any Asset Financing Facility or CRE Financing, in each case, that is permitted hereunder (including, without limitation, any Asset Financing Facility or CRE Financing existing on the Closing Date or established
from time to time after the Closing Date, in each case, that is permitted hereunder (including Asset Financing Facilities or CRE Financings established in contemplation of the applicable Restricted Subsidiary becoming a Subsidiary)) or
(b) that would require governmental (including regulatory) or third party (other than Borrower, a Subsidiary of Borrower, the
Manager, or the respective Affiliates of the foregoing) consent, approval, license or authorization not received (without any obligation to obtain such consent, approval, license or authorization) (and (other than in the case of any Asset Financing
Facility or CRE Financing with respect to (i) the relevant CRE Finance Assets or Real Estate Investments, as applicable, financed by such Asset Financing Facility or CRE Financing, as applicable, (ii) any corresponding Financing Equity and
(iii) other assets ancillary to such CRE Finance Asset or Real Estate Investments owned by the Financing SPE Subsidiary under such Asset Financing Facility or CRE Financing, as applicable) to the extent such requirement was not incurred in
contemplation of the Closing Date or of such Restricted Subsidiary becoming a Subsidiary) to provide a Guaranty (except to the extent such consent has been obtained, it being understood there is no obligation to obtain or seek to obtain any such
consent, approval, license or authorization), so long as, in the case of any Subsidiary that constitutes an Excluded Subsidiary pursuant to clause (a)(iii) or (b) (with respect to third party consent, approval, license or authorization
only) above only, a direct or indirect parent of such Subsidiary is a Guarantor,
(6) any special purpose vehicle (or
similar entity), receivables subsidiary, any Financing SPE Subsidiary or any Securitization Subsidiary,
(7) any Captive
Insurance Subsidiary or not-for-profit Subsidiary,
(8) any Subsidiary that is not a Material Subsidiary,
37
(9) any Subsidiary where either (a) the Borrower reasonably determines
in consultation with the Administrative Agent that the burden or cost (including any adverse tax consequences to the Borrower, any of its Subsidiaries or any Parent Company) of providing the Guaranty will outweigh the benefits to be obtained by the
Lenders therefrom or (b) the Borrower determines in good faith, in consultation with the Administrative Agent, that the Guaranty would result in adverse Tax consequences to the Borrower, any of its Subsidiaries, any direct or indirect Parent
Company or any of their respective equity holders,
(10) any Unrestricted Subsidiary,
(11) any Broker-Dealer Regulated Subsidiary,
(12) any other Subsidiaries as mutually agreed between the Borrower and the Administrative Agent, and
(13) any subsidiary party to any Asset Financing Facility or CRE Financing (including, without limitation, any Asset Financing
Facility or CRE Financing existing on the Closing Date or established from time to time after the Closing Date.
“Excluded
Subsidiary Joinder Exception” has the meaning set forth in the definition of “Collateral and Guarantee Requirement”.
“Excluded Swap Obligation” means, with respect to any Loan Party, (1) any obligation to pay or perform under any
agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act (each such obligation, a “Swap Obligation”), if, and to the extent that, all or a
portion of the guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order
of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined
in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Section 3.02 of the Guaranty and any other “keepwell, support or other agreement” for the benefit of such Loan
Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act) at the time the guarantee of such Loan Party, or a grant by such Loan Party of a security interest, becomes effective with respect to such Swap Obligation or
(b) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Loan Party is a “financial entity”, as defined in section 2(h)(7)(C) of the
Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Loan Party becomes or would become effective with respect to such Swap Obligation or (2) any other Swap Obligation designated as an
“Excluded Swap Obligation” of such Loan Party as specified in any agreement between the relevant Loan Parties and hedge counterparty applicable to such Swap Obligations. If a Swap Obligation arises under a master agreement governing more
than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest becomes excluded in accordance with the first sentence of this definition.
“Excluded Taxes” means, with respect to each Agent and each Lender,
(1) any Tax imposed on (or measured by) such Agent or Lender’s net income, profits (or net worth Tax in lieu of such Tax
on net income or profits), gross income or franchise Taxes, in each case imposed by a jurisdiction as a result of such Agent or Lender being organized under the laws of or having its principal office or applicable Lending Office located in such
jurisdiction or as a result of any other present or former connection between such Agent or Lender and the jurisdiction (including as a result of such Agent or Lender carrying on a trade or business, having a permanent establishment or being a
resident for Tax purposes in such jurisdiction), other than a
38
connection arising solely from such Agent or Lender having executed, delivered, enforced, 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 sold or assigned an interest in, any Loan or Loan Document,
(2) any branch profits Tax under Section 884(a) of the Code, or any similar Tax imposed by any jurisdiction described in
clause (1) above,
(3) other than pursuant to an assignment request by the Borrower under
Section 3.07, any U.S. federal Tax that is withheld or required to be withheld on amounts payable to or for the account of a Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect
on the date such Lender (a) acquires such interest in the applicable Commitment or, if such Lender did not fund the applicable Loan pursuant to a prior Commitment, on the date such Lender acquires the applicable interest in such Loan (or where
the Lender is a partnership for U.S. federal income Tax purposes, pursuant to a Law in effect on the later of the date on which such Lender acquires such interest or the date on which the affected partner becomes a partner of such Lender) or
(b) designates a new Lending Office, except in each case to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new Lending Office (or assignment), to receive additional
amounts from a Loan Party with respect to such U.S. federal Tax pursuant to Section 3.01 (or where the Lender is a partnership for U.S. federal income Tax purposes, where the Lender was entitled to receive additional
amounts in respect of the interest of the party from whom the affected partner acquired its interest in such partnership),
(4) any Tax attributable to such Lender’s or Agent’s failure to comply with
Section 3.01(3) or Section 3.01(7), respectively, and
(5) any
withholding Tax imposed under FATCA.
“Excused Lender” has the meaning specified in
Section 2.03(3)(c).
“Existing Revolving Class” has the meaning specified in
Section 2.16(2).
“Existing Term Loan Class” has the meaning specified in
Section 2.16(1).
“Expiring Credit Commitment” has the meaning specified in
Section 2.04(7).
“Extended Revolving Commitments” has the meaning specified in
Section 2.16(2).
“Extended Term Loans” has the meaning specified in
Section 2.16(1).
“Extending Lender” means an Extending Revolving Lender or an Extending Term
Lender, as the case may be.
“Extending Revolving Lender” has the meaning specified in
Section 2.16(3).
“Extending Term Lender” has the meaning specified in
Section 2.16(3).
“Extension” means the establishment of an Extension Series by amending a
Loan pursuant to Section 2.16 and the applicable Extension Amendment.
“Extension Amendment” has the meaning
specified in Section 2.16(4).
39
“Extension Election” has the meaning specified in
Section 2.16(3).
“Extension Minimum Condition” means a condition to consummating any
Extension that a minimum amount (to be determined and specified in the relevant Extension Request, in the Borrower’s sole discretion) of any or all applicable Classes be submitted for Extension.
“Extension Request” means any Term Loan Extension Request or any Revolving Extension Request, as the case may be.
“Extension Series” means any Term Loan Extension Series or a Revolving Extension Series, as the case may be.
“Facilities” means the Closing Date Term Loans, the Revolving Facility, the Closing Date Revolving Facility, the Closing
Date Term Loan Facility, a given Extension Series of Extended Revolving Commitments, a given Class of Other Term Loans, a given Extension Series of Extended Term Loans, a given Class of Incremental Term Loans, a given Class of
Incremental Revolving Commitments, any Other Revolving Loan (or Commitment) or a given Class of Replacement Loans, as the context may require, and “Facility” means any of them.
“Facilities Fees” has the meaning specified in the Fee Letter.
“fair market value” means, with respect to any asset or liability, the fair market value of such asset or liability as
determined by the Borrower in good faith.
“FATCA” means Sections 1471 through 1474 of the Code as in effect on the
date hereof or any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with (and, in each case, any current or future regulations promulgated thereunder or official interpretations
thereof), any applicable intergovernmental agreement entered into in respect thereof, and any provision of law or administrative guidance implementing or interpreting such Sections of the Code, including any agreements entered into pursuant to any
such intergovernmental agreement or Section 1471(b)(1) of the Code as of the date hereof (or any amended or successor version described above).
“FCPA” has the meaning specified in Section 5.01(4).
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based
on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business
Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that (1) 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 (2) 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%) of the quotations for the day for such transactions received by the Administrative Agent from three depository institutions of recognized standing selected by it. For the avoidance of doubt, if the Federal Funds Rate
shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Finance Lease
Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a lease that would at such time be required to be capitalized and reflected as a capital lease liability on a balance sheet
(excluding the footnotes thereto) prepared in accordance with GAAP as in effect prior to giving effect to the issuance by the Financial Accounting Standards Board of Accounting Standards Codification (ASC) 842, it being understood and agreed that
any lease that would constitute an operating lease under GAAP as in effect at such time shall constitute a Non-Finance Lease and accordingly the obligations in respect thereof shall not constitute Finance
Lease Obligations.
40
“Financial Covenant” means the covenant specified in
Section 7.08(1).
“Financial Covenant Standstill” has the meaning specified in
Section 8.01(2).
“Financial Incurrence Test” has the meaning specified in
Section 1.07(8).
“Financial Officer” means, with respect to a Person, the chief financial
officer, accounting officer, treasurer, controller or other senior financial or accounting officer of such Person, as appropriate.
“Financing Equity” means the equity interests of any Financing SPE Subsidiary pledged to secure an Asset Financing Facility
or CRE Financing.
“Financing SPE Subsidiary” means any Subsidiary that constitutes a special purpose entity,
receivables entity or other similar entity, in each case, formed or acquired to incur, or provide credit support with respect to, any Asset Financing Facility or CRE Financing at such time of formation or acquisition or any time thereafter.
“First Lien Obligations” means the Obligations, the Permitted Incremental Equivalent Debt and the Credit Agreement
Refinancing Indebtedness, in each case, that are, or are purported to be, secured by the Collateral on an equal priority basis (but without regard to the control of remedies) with Liens on the Collateral securing the Closing Date Term Loans. For the
avoidance of doubt, “First Lien Obligations” shall include the Closing Date Term Loans.
“First Lien/Second Lien
Intercreditor Agreement” means any of (1) an intercreditor agreement substantially in the form of Exhibit G-2 or (2) a customary intercreditor agreement in form and substance
reasonably acceptable to the Administrative Agent and the Borrower, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations under
this Agreement, in each case with respect to clauses (1) and (2) above, with such modifications thereto as the Administrative Agent and the Borrower may agree.
“Fitch” means Fitch Ratings, Inc. and any successor to its rating agency business.
“Fixed Basket” has the meaning specified in Section 1.07(8)(a).
“floor” means, with respect to any reference rate of interest, any fixed minimum amount specified for such rate.
“Foreign Asset Sale” has the meaning specified in Section 2.05(2)(g).
“Foreign Casualty Event” has the meaning specified in Section 2.05(2)(g).
“Foreign Lender” means a Lender that is not a United States person within the meaning of Section 7701(a)(30) of the
Code.
“Foreign Plan” means any employee benefit plan, program or agreement that is maintained or contributed to by, or
entered into with, the Borrower or any Subsidiary of the Borrower with respect to employees employed outside the United States and is required to be funded through a trust or other funding vehicle (other than benefit plans, programs or agreements
that are mandated by applicable Laws or maintained exclusively by a Governmental Authority).
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“Foreign Subsidiary” means any direct or indirect Restricted Subsidiary
that is not a Domestic Subsidiary.
“Foreign Subsidiary Holdco” means a Domestic Subsidiary substantially all of whose
assets consists (directly or indirectly) of the Capital Stock and/or indebtedness (and related or similar assets) of one or more (1) Foreign Subsidiaries or (2) Foreign Subsidiary Holdcos.
“Free and Clear Incremental Amount” has the meaning specified in Section 2.14(4)(c)(i).
“Fronting Exposure” means, at any time there is a Defaulting Lender, (1) with respect to an Issuing Bank (or the
Administrative Agent in the case of Support Agreements), such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations, other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (2) with respect to any Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans, other than Swing Line Loans as to
which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is primarily engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Debt”
means all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such
Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect
of the Loans.
“GAAP” means generally accepted accounting principles in the United States 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, as in effect from time to time.
“General Debt Basket”
has the meaning specified in Section 7.02(l)(ii).
“General Debt Basket Reallocated Amount”
means any unused amount that, at the option of the Borrower, has been reallocated from the General Debt Basket to clause (i)(B)(I) of the “Available Incremental Amount” set forth in Section 2.14(4)(c),
which shall be deemed to be utilization of the General Debt Basket. For the avoidance of doubt, any used amount under the General Debt Basket may be reallocated in accordance with Section 1.07(8).
“General Liens Basket” has the meaning specified in clause (21) of the definition of “Permitted
Liens”.
“General Liens Basket Reallocated Amount” means any unused amount that, at the option of the Borrower,
has been reallocated from the General Liens Basket to clause (i)(B)(II) of the “Available Incremental Amount” set forth in Section 2.14(4)(c), which shall be deemed to be utilization of the General Liens Basket. For
the avoidance of doubt, any used amount under the General Liens Basket may be reallocated in accordance with Section 1.07(8).
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“General Investments Basket” has the meaning specified in clause
(13) of the definition of “Permitted Investments”.
“General Restricted Payments Basket” has the
meaning specified in Section 7.05(2)(j).
“General Restricted Payments Basket Reallocated
Amount” means any unused amount that, at the option of the Borrower, has been reallocated from the General Restricted Payments Basket to the General Investments Basket, which shall be deemed to be a utilization of the General Restricted
Payments Basket.
“Governmental Authority” means the government of the United States or any other nation, or of any
political subdivision thereof, whether state, local or otherwise, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Granting Lender” has the meaning specified in Section 10.07(7).
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of
business or consistent with industry practice), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
“Guarantee” means, as to any Person, without duplication, (1) any obligation, contingent or otherwise, of such Person
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, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (b) 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, (c) 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 (d) 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 (2) any Lien on any assets of such Person securing any
Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business or consistent with industry practice, or customary and reasonable indemnity
obligations in effect on the Closing Date or entered into in connection with the Transactions or any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
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“Guarantor Release Election” has the meaning specified in the definition
of “Collateral and Guarantee Requirement”.
“Guarantors” has the meaning specified in
clause (2) of the definition of “Collateral and Guarantee Requirement”. For avoidance of doubt, the Borrower may, in its sole discretion, cause any Parent Company or Restricted Subsidiary that is not required to
be a Guarantor to Guarantee the Obligations by causing such Parent Company or Restricted Subsidiary to execute a joinder to the Guaranty (substantially in the form provided therein or as the Administrative Agent, the Borrower and such Guarantor may
otherwise agree), and any such Parent Company or Restricted Subsidiary shall be a Guarantor hereunder for all purposes; provided that the Administrative Agent shall have received at least two (2) Business Days prior to the effectiveness
of such joinder (or such later date as reasonably agreed by the Administrative Agent) all documentation and other information in respect of such Guarantor required under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act.
“Guaranty” means (1) the Guaranty substantially in the form of
Exhibit E made by each Subsidiary Guarantor, (2) each other guaranty and guaranty supplement delivered pursuant to Section 6.11 and (3) each other guaranty and guaranty supplement delivered by any Parent
Company or Restricted Subsidiary pursuant to the second sentence of the definition of “Guarantors”.
“Hazardous
Materials” means substances, wastes, pollutants, contaminants and chemicals, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas and infectious or medical wastes, to
the extent any of the foregoing are regulated pursuant to, or can form the basis for liability under, any Environmental Law due to their dangerous or deleterious properties or characteristics.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any
Hazardous Material, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal,
remediation, disposal, disposition or handling of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Hedge Agreement” means (1) 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 (2) any and all transactions of any
kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Hedge Bank” means (1) any Person party to a Secured Hedge Agreement that is an Agent, a Lender, an Arranger or an
Affiliate of any of the foregoing on the Closing Date or at the time it enters into such Secured Hedge Agreement, in its capacity as a party thereto, whether or not such Person subsequently ceases to be an Agent, a Lender, an Arranger or an
Affiliate of any of the foregoing or (2) to the extent such person is reasonably satisfactory to the Administrative Agent, any Person from time to time designated in writing as a “Hedge Bank” by the Borrower to the Administrative
Agent.
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“Hedging Obligations” means, with respect to any Person, the obligations
of such Person under any Hedge Agreement. For the avoidance of doubt, any Permitted Convertible Indebtedness Call Transaction will not constitute Hedging Obligations.
“Honor Date” has the meaning specified in Section 2.03(3)(a).
“Identified Participating Lenders” has the meaning specified in Section 2.05(1)(e)(C)(III).
“Identified Qualifying Lenders” has the meaning specified in Section 2.05(1)(e)(D)(III).
“IFRS” means international financial reporting standards and interpretations issued by the International Accounting
Standards Board or any successor thereto, as in effect from time to time.
“Immaterial Subsidiary” means any Restricted
Subsidiary that is not a Material 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, in each case, adoptive relationships) and any trust, partnership or other bona fide
estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the
donor.
“Incremental Amendment” has the meaning specified in Section 2.14(6).
“Incremental Amounts” has the meaning specified in clause (a) of the definition of “Refinancing
Indebtedness”.
“Incremental Commitments” has the meaning specified in Section 2.14(1).
“Incremental Facility Closing Date” has the meaning specified in Section 2.14(4).
“Incremental Lenders” has the meaning specified in Section 2.14(3).
“Incremental Loan” has the meaning specified in Section 2.14(2).
“Incremental Loan Request” has the meaning specified in Section 2.14(1).
“Incremental Revolving Commitments” has the meaning specified in Section 2.14(1).
“Incremental Revolving Facility” has the meaning specified in Section 2.14(1).
“Incremental Revolving Lender” has the meaning specified in Section 2.14(3).
“Incremental Revolving Loan” has the meaning specified in Section 2.14(2).
“Incremental Term Commitments” has the meaning specified in Section 2.14(1).
“Incremental Term Lender” has the meaning specified in Section 2.14(3).
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“Incremental Term Loan” has the meaning specified in
Section 2.14(2).
“incur” and “incurrence” have the meanings specified in
Section 7.02(1)(a).
“Indebtedness” means, with respect to any Person, without duplication,
(1) obligations created, issued or incurred by such person for borrowed money (whether by loan, the issuance and sale of
debt securities or the sale of property to another person subject to an understanding or agreement, contingent or otherwise, to repurchase such property from such person),
(2) obligations of such person to pay the deferred purchase or acquisition price of property or services (other than
(a) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business and (b) obligations with respect to earn-outs and similar deferred or contingency compensation
arrangements that are not due and payable at such time),
(3) Indebtedness of others secured by a lien on the property of
such person, whether or not the respective Indebtedness so secured has been assumed by such person,
(4) obligations
(contingent or otherwise) of such person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for the account of such person,
(5) Finance Lease Obligations of such person to the extent required to be characterized as a capitalized or financing lease
(but not, for the avoidance of doubt, an operating lease) under GAAP,
(6) obligations of such person under repurchase
agreements or like arrangements,
(7) Obligations representing the net obligations under any Hedging Obligations, and
(8) Indebtedness of others guaranteed by such person to the extent of such guarantee;
provided that, notwithstanding the foregoing, (a) in no event shall obligations under any Derivative Transaction be
deemed “Indebtedness” for any calculation of the Senior Debt to Total Assets Ratio or the Total Debt to Total Assets Ratio or any other financial ratio under the Loan Documents, (b) the amount of Indebtedness of any Person for
purposes of the foregoing clause (3) 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, (c) Indebtedness of the Borrower and its Restricted Subsidiaries shall exclude intercompany Indebtedness so long as such intercompany Indebtedness (i) has a term not exceeding 364 days (inclusive of any roll-over or
extensions of terms) and (ii) of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party is unsecured and subordinated to the Obligations and subject to the Intercompany Note, (d) in no event shall obligations in respect
of Non-Finance Lease Obligations be deemed “Indebtedness for any purpose under the Loan Documents, and (e) for the avoidance of doubt, in no event shall any funding obligations or commitments, or
guarantees of funding obligations or commitments, under any CRE Finance Assets be deemed “Indebtedness” for any purpose under the Loan Documents;
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provided, further, that Indebtedness will be calculated
without giving effect to the effects of Accounting Standards Codification Topic No. 815, Derivatives and Hedging (or any similar requirement under another accounting standard), and related interpretations to the extent such effects would
otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
For the avoidance of doubt, Indebtedness will be deemed to not include obligations (“Escrowed Obligations”) 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 that the proceeds thereof are and continue to be held in an escrow, trust, collateral or similar account or
arrangement (collectively, an “Escrow”) and are not otherwise made available for any other purpose and are used for such purpose (it being understood that in any event, any such proceeds held in such Escrow shall be deemed not to
constitute part of Liquidity).
“Indemnified Liabilities” has the meaning specified in
Section 10.05(1).
“Indemnitees” has the meaning specified in
Section 10.05(1).
“Independent Assets or Operations” means, with respect to any Parent
Company, that such Parent Company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Borrower and the
Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such Parent Company, is more than 3.0% of such Parent Company’s corresponding consolidated amount.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally
recognized standing that, in the good faith judgment of the Borrower, is qualified to perform the task for which it has been engaged.
“Information” has the meaning specified in Section 10.09.
“Initial Default” has the meaning specified in Section 1.02(9).
“Initial Lien” has the meaning set forth in the definition of “Permitted Investments”.
“Intellectual Property Security Agreements” has the meaning specified in the Security Agreement.
“Intercompany Note” means the Intercompany Note, dated as of the Closing Date, substantially in the form of Exhibit
Q executed by the Borrower and each Restricted Subsidiary party thereto.
“Intercreditor Agreement” means, as
applicable, any First Lien/Second Lien Intercreditor Agreement and any Equal Priority Intercreditor Agreement.
“Interest
Coverage Covenant Event of Default has the meaning specified in Section 8.01(2).
“Interest
Coverage Covenant Standstill” has the meaning specified in Section 8.01(2).
“Interest
Coverage Ratio” means, with respect to any Test Period, the ratio of (1) Consolidated Interest Income of the Borrower and the Restricted Subsidiaries for such Test Period to (2) Consolidated Interest Expense of the Borrower and
the Restricted Subsidiaries for such Test Period.
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“Interest Payment Date” means, (1) as to any Loan of any
Class other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date of the Loans of such Class; provided that if any Interest Period for a Term SOFR Loan exceeds three months,
the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates and (2) as to any Base Rate Loan of any Class, the last Business Day of each March, June, September and December
and the applicable Maturity Date of the Loans of such Class.
“Interest Period” means, as to each Term SOFR Loan, the
period commencing on the date such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one (1), three (3) or six (6) months thereafter (or such other period as may be consented to by each
applicable Lender and the Administrative Agent), as selected by the Borrower in its Committed Loan Notice; provided that:
(1) 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 immediately preceding Business Day;
(2) any Interest Period (other than an Interest Period having a duration of less than one month) that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;
and
(3) no Interest Period shall extend beyond the applicable Maturity Date for the Class of Loans of which such Term
SOFR Loan is a part.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s or BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency selected by the Borrower.
“Investment Grade Securities” means:
(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or
instrumentality thereof (other than Cash Equivalents);
(2) debt securities or debt instruments with an Investment Grade
Rating, but excluding any debt securities or debt instruments constituting loans or advances among the Borrower and its Subsidiaries;
(3) investments in any fund that invests substantially all of its assets in investments of the type described in clauses
(1) and (2) of this definition which fund may also hold immaterial amounts of cash pending investment or distribution; and
(4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in
the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, credit card and debit card receivables, trade credit, advances to customers, commission, travel and similar advances to employees, directors,
officers, members of management, consultants and independent contractors, in each case made in the ordinary course of business or consistent with industry practice), purchases or other acquisitions for consideration of Indebtedness, Equity Interests
or other securities issued by any other Person. For purposes of the definitions of “Permitted Investments” and “Unrestricted Subsidiary” and Section 7.05,
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(1) “Investments” will include the portion (proportionate to the
Borrower’s Equity Interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary (but excluding, for the avoidance of doubt, the
fair market value of the net assets of any other Subsidiary of such Subsidiary being designated as an Unrestricted Subsidiary that was previously designated as an Unrestricted Subsidiary and which used capacity under
Section 7.05 to make such Investment in such Unrestricted Subsidiary at such previous time); provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower will be deemed to continue
to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the
Borrower’s “Investment” in such Subsidiary at the time of such redesignation; minus
(b) the
portion (proportionate to the Borrower’s Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary will be valued at its fair market value at the time of such
transfer.
The amount of any Investment outstanding at any time will be the original cost of such Investment, reduced by any dividend,
distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment.
“Investor” means, collectively, TPG Global, LLC and any of its Affiliates, limited partners and funds or partnerships
managed or advised by it or any of its Affiliates or limited partners, but not including, however, any portfolio company of any of the foregoing.
“IP Rights” has the meaning specified in Section 5.15.
“IRS” means Internal Revenue Service of the United States.
“ISDA CDS Definitions” has the meaning specified in Section 10.01(5)(d).
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the
International Chamber of Commerce publication no. 950 (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means (1) the Administrative Agent, (2) one or more banks, trust companies or other Persons in
each case expressly identified to the Administrative Agent from time to time by the Borrower which have agreed to be Issuing Banks and (3) any other Revolving Lender (or its Affiliates) that becomes an Issuing Bank in accordance with
Section 2.03(11). Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by any Affiliate of such Issuing Bank or an unaffiliated financial institution, in which case the term
“Issuing Bank” shall include any such Affiliate or unaffiliated financial institution, as applicable, with respect to Letters of Credit issued by such Affiliate or unaffiliated financial institution, as applicable (it being agreed that
such Issuing Bank shall, or shall cause such Affiliate or unaffiliated financial institution to, comply with the requirements of Section 2.03 with respect to such Letters of Credit).
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“Issuing Bank Document” means with respect to any Letter of Credit or
Support Agreement, as applicable, the L/C Application, and any other document, agreement and instrument entered into by any Issuing Bank and the Borrower (or any of its Subsidiaries) or in favor of such Issuing Bank and relating to such Letter of
Credit in the case of Letters of Credit, or in favor of the Administrative Agent and the other parties thereto in the case of Support Agreements.
“Junior Indebtedness” means any Indebtedness of any Loan Party that by its terms is contractually subordinated in right of
payment to the Obligations of such Loan Party arising under the Loans or the Guaranty with an individual outstanding principal amount in excess of the Threshold Amount. For the avoidance of doubt, each Asset Financing Facility and CRE Financing
shall not constitute Junior Indebtedness.
“Junior Lien Debt” has the meaning specified in clause (39) of
the definition of “Permitted Liens”.
“L/C Advance” means, with respect to each Revolving Lender, such
Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“L/C
Application” means an application and agreement for the issuance or amendment of a (1) Support Agreement in the form from time to time in use by the Administrative Agent or (2) Letter of Credit in the form from time to time in
use by the relevant Issuing Bank.
“L/C Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit or Support Agreement which has not been reimbursed prior to the Honor Date or refinanced as a Revolving Borrowing.
“L/C Commitment” means the amount set forth opposite the name of such Person on Schedule 2.01 under the caption
“L/C Commitment”.
“L/C Credit Extension” means, with respect to any Letter of Credit or Support Agreement,
the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Expiration
Date” means the day that is five (5) Business Days prior to the scheduled Maturity Date then in effect for the applicable Revolving Facility (or, if such day is not a Business Day, the next preceding Business Day).
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding
Supported Letters of Credit (and related Support Agreements) and Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Supported
Letters of Credit (and related Support Agreements) and Letter of Credit, the amount of such Supported Letters of Credit (and related Support Agreements) or Letter of Credit shall be the maximum amount available to be drawn under such Support
Agreement or Letter of Credit (as applicable) (not to exceed the stated amount thereof in effect at such time, or, with respect to any Support Agreement or Letter of Credit (as applicable) that, by its terms or the terms of any L/C Application
related thereto, provides for one or more automatic increases in the stated amount thereof, the maximum stated amount of such Support Agreement or 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 Supported Letter of Credit (and related Support Agreements) or Letter of Credit has expired by its terms but any amount may still be drawn thereunder
by reason of the operation of Rule 3.13 or Rule 3.14 of the ISP, article 29 of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce publication no. 600, such Letter of Credit shall be deemed to be
“outstanding” in the amount so remaining available to be drawn.
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“L/C Sublimit” means an amount equal to the lesser of (1) $10,000,000, as
adjusted from time to time in accordance with Section 2.14 and (2) the aggregate amount of the Revolving Commitments. The L/C Sublimit is part of, and not in addition to, the Revolving Facility.
“L/C Sublimit Availability” means an amount equal to (1) the L/C Sublimit less (2) the principal amount of
L/C Obligations then outstanding less (3) the principal amount of Indebtedness in connection with commercial and trade letters of credit incurred and outstanding under Section 7.02(2)(b) less (4) the
principal amount of Specified Letter of Credit Obligations then outstanding.
“Latest Maturity Date” means, at any date
of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, any Incremental Revolving Commitment, any Other Loan, any
Other Revolving Commitments, any Replacement Loan, any Extended Term Loan or any Extended Revolving Commitment, in each case as extended in accordance with this Agreement from time to time.
“Laws” means, collectively, all applicable international, foreign, federal, state and local laws (including common law),
statutes, treaties, rules, legally binding guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, 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, licenses, authorizations and permits of, and written agreements with, any Governmental Authority.
“LCT Election” has the meaning specified in Section 1.07(11).
“LCT Test Date” has the meaning specified in Section 1.07(11).
“Legal Holiday” means Saturday, Sunday or a day on which commercial banking institutions are not required to be open in the
State of New York or at the place of payment.
“Lender” has the meaning specified in the introductory paragraph to this
Agreement and, as the context requires (including for purposes of the definition of “Secured Parties” and for purposes of Sections 3.01 and 3.04), includes any Issuing Bank, Swing Line Lender and their respective successors and assigns
as permitted hereunder, each of which is referred to herein as a “Lender”. For the avoidance of doubt, each Additional Lender is a Lender to the extent any such Person has executed and delivered a Refinancing Amendment, an Incremental
Amendment or an amendment in respect of Replacement Loans, as the case may be, and to the extent such Refinancing Amendment, Incremental Amendment or amendment in respect of Replacement Loans shall have become effective in accordance with the terms
hereof and thereof, and each Extending Lender shall continue to be a Lender. As of the Closing Date, Schedule 2.01 sets forth the name of each Lender. Notwithstanding anything to the contrary herein or in any other Loan Document, no
Disqualified Institution that purports to become a Lender hereunder (notwithstanding the provisions of this Agreement that prohibit Disqualified Institutions from becoming Lenders) without the Borrower’s written consent shall be entitled to
any of the rights or privileges enjoyed by the other Lenders (x) under Sections 2.18, 3.01(2)(b), 3.01(4), 3.01(5), 3.04, 10.04 or 10.05 or any similar reimbursement or indemnification provisions
contained in any other Loan Document or (y) with respect to voting, information and lender meetings; provided that the Loans of any such Disqualified Institution shall not be excluded for purposes of making a determination of Required
Lenders if the action in question affects such Disqualified Institution in a disproportionately adverse manner than its effect on the other Lenders; provided, further, that,
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notwithstanding anything herein or in any other Loan Document to the contrary, if any assignment or participation is made to any Disqualified Institution without the Borrower’s prior
written consent in violation of clause (e) of Section 10.07(2) the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent,
(1) terminate any Revolving Commitment of such Disqualified Institution and repay all obligations of the Borrower owing to such Disqualified Institution in connection with such Revolving Commitment, (2) in the case of outstanding Term
Loans held by Disqualified Institutions, purchase or prepay such Term Loan by paying the lesser of (a) the principal amount thereof and (b) the amount that such Disqualified Institution paid to acquire such Term Loans, in each case plus
accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (3) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions
contained in Section 10.07), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (a) the principal amount thereof and (b) the amount that such
Disqualified Institution paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
“Lender-Related Distress Event” means, with respect to any Lender or any direct or indirect parent company of such Lender
(each, a “Distressed Person”), (1) that such Distressed Person is or becomes subject to a voluntary or involuntary case under any Debtor Relief Law, (2) a custodian, conservator, receiver or similar official is appointed for
such Distressed Person or any substantial part of such Distressed Person’s assets, (3) such Distressed Person is subject to a forced liquidation, makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or
determined by any Governmental Authority having regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt or (4) that such Distressed Person becomes the subject of a
Bail-in Action or other similar proceeding (including a proceeding under a U.S. Special Resolution Regime); provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by
virtue of the ownership or acquisition of any Equity Interests in any Lender or any direct or indirect parent company of a Lender by a Governmental Authority or an instrumentality thereof so long as such ownership interest does not result in or
provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject,
repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
“Lender Related Person” has the
meaning specified in Section 10.05(2).
“Lending Office” means, as to any Lender, the office
or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means any letter of credit, letter of guarantee or bankers’ acceptance issued hereunder.
“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge,
security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof,
any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event will
(1) any Non-Finance Lease, (2) any non-exclusive license in or to any IP Rights or (3) any right of first refusal and tag, drag, forced sale, major
decision or similar right in respect of any CRE Finance Asset or Real Estate Investment be deemed to constitute a Lien.
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“Limited Condition Transactions” means (1) any Permitted Acquisition
or other Investment or similar transaction (whether by merger, amalgamation, consolidation or other business combination or the acquisition of Capital Stock or otherwise) permitted hereunder by the Borrower or one or more of its Restricted
Subsidiaries, (2) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance thereof (which notice, for the avoidance of doubt, may be conditioned upon the occurrence
of a refinancing or any other transaction), (3) any Restricted Payment requiring irrevocable notice in advance thereof and (4) any Asset Sale or other disposition permitted hereunder by the Borrower or one or more of its Restricted
Subsidiaries.
“Liquidity” means, on any date of determination, the aggregate amount of cash and Cash Equivalents of
the Borrower and the Restricted Subsidiaries that (1) would not appear as “restricted” on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries or (2) are restricted in favor of the Facilities (which may
also secure, or be restricted in favor of, other Indebtedness secured by Liens on the Collateral on a pari passu or junior Lien basis with the Facilities).
“Liquidity Covenant Event of Default” has the meaning specified in Section 8.01(2).
“Liquidity Covenant Standstill” has the meaning specified in Section 8.01(2).
“LLC” means any limited liability company.
“LLC Division” means the statutory division of any LLC into two or more LLCs pursuant to
Section 18-217 of the Delaware Limited Liability Company Act or a comparable provision of any other applicable Law.
“Loan” means an extension of credit under Article II by a Lender (1) to the Borrower in the form of a Term Loan,
(2) to the Borrower in the form of a Revolving Loan or (3) to the Borrower in the form of a Swing Line Loan.
“Loan
Documents” means, collectively, (1) this Agreement, (2) the Notes, (3) any Refinancing Amendment, Incremental Amendment, Extension Amendment or amendment in respect of Replacement Loans, (4) the Guaranty, (5) the
Collateral Documents and (6) the Intercreditor Agreements.
“Loan Increase” means a Term Loan Increase or
Revolving Commitment Increase.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“Manager” means TPG RE Finance Trust Management, L.P. (or any successor investment manager thereto) or, to the extent the
board of directors of the Borrower appoints another investment manager of the Borrower at any time and from time to time, such other investment manager appointed thereby. Notwithstanding anything to the contrary set forth herein, (1) each
reference to “Manager” set forth in clause (b) of the definition of Core Earnings, the last paragraph of the definition of Disqualified Stock, Section 7.05(3)(d) and clause (27) of the
definition of “Permitted Investments” shall, as applicable, also be deemed to include any previous investment manager of the Borrower (each, a “Predecessor Manager”) with respect to any Capital Stock, compensation or
deferred compensation granted or provided to any applicable Person set forth in such applicable clause, or any arrangement or agreement entered into with respect to any applicable item referenced in such clause, while such Predecessor Manager was
acting as the Manager of the Borrower and (2) each reference to “Manager” set forth in Section 6.15(c) shall include any Predecessor Manager (provided that any fees paid to a Predecessor Manager
pursuant to Section 6.15(c) shall have accrued or been granted while such Person was acting as the Manager of the Borrower).
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“Management Services Agreement” means the management services agreement
or any similar agreement among the Manager and/or certain of the management companies associated with the Manager and/or their respective advisors, if applicable, and the Borrower, any Restricted Subsidiary or any Parent Company.
“Margin Stock” has the meaning set forth in Regulation U of the Board of Governors of the United States Federal Reserve
System, or any successor thereto.
“Market Capitalization” means an amount equal to (1) the total number of issued
and outstanding shares of common Equity Interests of the Borrower or the applicable Parent Company, as applicable, on the date of the declaration of a Restricted Payment permitted pursuant to Section 7.05(2)(h) multiplied
by (2) the arithmetic mean of the closing prices per share of such common Equity Interests on the principal securities exchange on which such common Equity Interests are traded for the thirty (30) consecutive trading days immediately
preceding the date of declaration of such Restricted Payment; provided that if the applicable Parent Company directly or indirectly owns less than 100% of the Equity Interests of the Borrower, the Market Capitalization shall be (a) the amount
determined above divided by (b) the decimal equivalent of the percentage of the Equity Interests of Holdings directly or indirectly owned by such Parent Company.
“Master Agreement” has the meaning specified in the definition of “Hedge Agreement”.
“Material Adverse Effect” means any event, circumstance or condition that has had a materially adverse effect on
(1) the business, operations, assets or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (2) the ability of the Loan Parties (taken as a whole) to perform their payment obligations under the Loan
Documents or (3) the rights and remedies of the Lenders, the Collateral Agent or the Administrative Agent under the Loan Documents.
“Material Domestic Subsidiary” means any Domestic Subsidiary that is a Material Subsidiary.
“Material Foreign Subsidiary” means any Foreign Subsidiary that is a Material Subsidiary.
“Material Intellectual Property” means any IP Rights material to the operation of the business of the Borrower and the
Restricted Subsidiaries, taken as a whole (as determined by the Borrower in good faith).
“Material Real Property”
means any fee-owned real property located in the United States and owned by any Loan Party with a fair market value in excess of $50,000,000 on the Closing Date (if owned by a Loan Party on the Closing Date)
or at the time of acquisition (if acquired by a Loan Party after the Closing Date) or date that any Person becomes a Loan Party (if owned by a Person that becomes a Loan Party after the Closing Date); provided that for the avoidance of doubt,
Material Real Property will not include any Excluded Assets (excluding for this purpose any Excluded Real Property).
“Material
Subsidiary” means, as of the Closing Date and thereafter at any date of determination, each Restricted Subsidiary of the Borrower (1) whose total assets at the last day of the most recent Test Period (when taken together with the
total assets of the Restricted Subsidiaries of such Subsidiary at the last day of the most recent Test Period) were equal to or greater than 10.0% of Total Assets at such date or (2) whose gross revenues for such Test Period (when taken
together with the gross revenues of the Restricted Subsidiaries of such Subsidiary for such Test Period) were equal to or greater than 10.0% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such Test Period, in
each case determined in accordance with GAAP; provided that if at any time and from time to time after the date which is thirty (30) days after the Closing Date (or such longer period as the Administrative Agent may
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agree in its reasonable discretion), all Restricted Subsidiaries that are not Guarantors solely because they do not meet the thresholds set forth in the preceding clause (1) or
(2) comprise in the aggregate more than (when taken together with the total assets of the Restricted Subsidiaries of such Subsidiaries at the last day of the most recent Test Period) 20.0% of Total Assets as of the last day of the most recent
Test Period or more than (when taken together with the gross revenues of the Restricted Subsidiaries of such Subsidiaries for such Test Period) 20.0% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such Test
Period, then the Borrower shall, not later than seventy-five (75) days after the date by which financial statements for such Test Period were required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent
may agree in its reasonable discretion), (a) designate in writing to the Administrative Agent one or more Restricted Subsidiaries as “Material Subsidiaries” to the extent required such that the foregoing condition ceases to be true and
(b) comply with the provisions of Section 6.11 with respect to any such Restricted Subsidiaries (to the extent applicable), in each case, other than any Restricted Subsidiaries that otherwise constitute Excluded
Subsidiaries (other than by virtue of being Immaterial Subsidiaries). At all times prior to the delivery of the aforementioned financial statements, such determinations shall be made based on the latest internally available financial statements for
the most recently ended fiscal quarter (as adjusted by the Borrower (in its good faith judgment) on a pro forma basis to give effect to the Transactions as if the Transactions had occurred at the beginning of such period).
“Maturity Date” means (1) with respect to the Closing Date Term Loans that have not been extended pursuant to
Section 2.16, May 14, 2033 (the “Original Term Loan Maturity Date”), (2) with respect to the Closing Date Revolving Facility, to the extent not extended pursuant to
Section 2.16, May 14, 2031 (the “Original Revolving Facility Maturity Date”), (3) with respect to any Class of Extended Term Loans or Extended Revolving Commitments, the final maturity date
as specified in the applicable Extension Amendment, (4) with respect to any Other Term Loans or Other Revolving Commitments, the final maturity date as specified in the applicable Refinancing Amendment, (5) with respect to any
Class of Replacement Loans, the final maturity date as specified in the applicable amendment to this Agreement in respect of such Replacement Loans and (6) with respect to any Incremental Loans or Incremental Revolving Commitments, the
final maturity date as specified in the applicable Incremental Amendment; provided, in each case, that if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately succeeding such day.
“Maximum Rate” has the meaning specified in Section 10.11.
“MFN Conditions” has the meaning specified in Section 2.14(5)(c).
“MFN Provision” has the meaning specified in Section 2.14(5)(c).
“MFN Threshold” has the meaning specified in Section 2.14(5)(c).
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Mortgage” means a mortgage customary in the jurisdiction to which it is to be filed in form and substance reasonably
acceptable to the Administrative Agent and the Borrower, in each case with such modifications thereto as the Administrative Agent and the Borrower may agree, in each case, including such modifications as may be required by local laws, pursuant to
Section 6.12(2), and any other deeds of trust, trust deeds, hypothecs, deeds to secure debt or mortgages executed and delivered pursuant to Section 6.11.
“Mortgage Policies” has the meaning specified in Section 6.11(2)(b)(ii).
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“Mortgaged Properties” has the meaning specified in paragraph
(5) of the definition of “Collateral and Guarantee Requirement”.
“Multiemployer Plan” means any
multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which the Borrower or any of their respective ERISA Affiliates makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions for which any obligation or liability remains outstanding.
“Net
Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
“Net Proceeds” means:
(1) with respect to any Asset Sale or any Casualty Event, the aggregate cash and Cash Equivalents received by the Borrower or
any Restricted Subsidiary in respect of such Asset Sale or Casualty Event, including any cash and Cash Equivalents received upon the sale or other disposition of any Designated Non-Cash Consideration received
in any Asset Sale, net of the costs relating to such Asset Sale or Casualty Event and the sale or disposition of such Designated Non-Cash Consideration, including legal, accounting, consulting and investment
banking fees, payments made in order to obtain a necessary consent or required by applicable Law, brokerage and sales commissions, title insurance premiums, related search and recording charges, survey costs and mortgage recording tax paid in
connection therewith, all dividends, distributions or other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of any such Asset Sale or Casualty Event by a Restricted Subsidiary, the amount of any
purchase price or similar adjustment claimed by any Person to be owed by the Borrower or any Restricted Subsidiary, until such time as such claim will have been settled or otherwise finally resolved, or paid or payable by the Borrower or any
Restricted Subsidiary, in either case in respect of such Asset Sale or Casualty Event, any relocation expenses incurred as a result thereof, costs and expenses in connection with unwinding any Hedging Obligation in connection therewith, other fees
and expenses, including title and recordation expenses, Taxes paid or reasonably estimated to be payable (including any additional distributions with respect to Taxes pursuant to Section 7.05(2)(n) to be made as a result of
the transactions giving rise to such cash and Cash Equivalents received) as a result thereof or any transactions occurring or deemed to occur to effectuate a payment under this Agreement, amounts required to be applied to the repayment of principal,
premium, if any, and interest on Indebtedness (other than the First Lien Obligations and Indebtedness secured by Liens that are expressly subordinated to the Liens securing the Obligations) secured by a Lien on such assets and required to be paid as
a result of such transaction (other than any such Indebtedness that is assumed by the purchaser of such asset) (including, without limitation, any Asset Financing Facility or CRE Financing) and any deduction of appropriate amounts to be provided by
the Borrower or any Restricted Subsidiary as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the 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 against any indemnification obligations associated with such transaction; provided that (a) no net
cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such net cash proceeds shall exceed the greater of (i) $16,250,000 and (ii) 0.36% of
Total Assets for the most recently ended Test Period (calculated on a pro forma basis) and (b) no net cash proceeds with respect to any other Asset Sale or Casualty Event not excluded from the requirements of this clause
(1) pursuant to subclause (a) shall constitute Net Proceeds under this clause (1) in any fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year shall exceed the greater
of (i) $32,500,000 and (ii) 0.72% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) (and thereafter only net cash proceeds in excess of such amount shall constitute Net Proceeds under this
clause (1)); and
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(2) (a) with respect to the incurrence or issuance of any Indebtedness by
the Borrower or any Restricted Subsidiary, any Permitted Equity Issuance by the Borrower or any Parent Company or any contribution to the common equity capital of the Borrower, the excess, if any, of (i) the sum of the cash and Cash Equivalents
received in connection with such incurrence or issuance over (ii) all Taxes paid or reasonably estimated to be payable (including any additional distributions with respect to Taxes pursuant to Section 7.05(2)(n) to be
made), and all fees (including investment banking fees, attorneys’ fees, accountants’ fees, underwriting fees and discounts), commissions, costs and other
out-of-pocket expenses and other customary expenses incurred, in each case by the Borrower or such Restricted Subsidiary in connection with such incurrence or issuance
and (b) with respect to any Permitted Equity Issuance by any Parent Company, the amount of cash from such Permitted Equity Issuance contributed to the capital of the Borrower.
“Net Proceeds Percentage” has the meaning specified in Section 2.05(2)(b).
“Net Short Lender” has the meaning specified in Section 10.01(4).
“net short position” has the meaning specified in Section 10.01(5)(d).
“New Lien” has the meaning set forth in the definition of “Permitted Investments”.
“Non-Consenting Lender” has the meaning specified in
Section 3.07.
“Non-Defaulting Lender” means, at any
time, a Lender that is not a Defaulting Lender.
“Non-Excluded Taxes” means
(1) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, and (2) to the extent not otherwise described in the preceding clause
(1), Other Taxes.
“Non-Extension Notice Date” has the meaning specified in
Section 2.03(2)(c).
“Non-Finance Lease” means, as
applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee, the obligations in respect of which are not a Finance Lease Obligations.
“Non-Finance Lease Obligation” means a lease obligation pursuant to any Non-Finance Lease.
“Non-Fixed Basket” has
the meaning specified in Section 1.07(8)(b).
“Non-Recourse
Indebtedness” means Indebtedness that is non-recourse to the Borrower and its Restricted Subsidiaries.
“Non-Ratio Based Incremental Amount” has the meaning specified in
Section 2.14(4)(c)(ii).
“Note” means a Term Note, Revolving Note or Swing Line Note, as the
context may require.
“Notice of Intent to Cure” has the meaning specified in
Section 8.04(1).
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“Obligations” means all:
(1) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan, Letter of Credit or Support Agreement, 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, fees and other
amounts that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and other amounts are allowed
claims in such proceeding;
(2) obligations (other than Excluded Swap Obligations) of any Loan Party or Restricted
Subsidiary arising under any Secured Hedge Agreement;
(3) Cash Management Obligations under each Secured Cash Management
Agreement;
(4) Specified Letter of Credit Obligations in respect of each Specified Letter of Credit; and
(5) obligations of any Loan Party to the Agents arising under the Fee Letter in respect of administration fees.
Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and any of their Subsidiaries
to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, premium, reimbursement obligations, charges, expenses, fees (including Letter of Credit fees),
Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document.
Notwithstanding the foregoing,
(a) unless otherwise agreed to by the Borrower and any applicable Hedge Bank, Cash Management Bank or Specified Letter of Credit Issuer, the obligations of the Borrower or any Subsidiary under any Secured Hedge Agreement, under any Secured Cash
Management Agreement and in respect of any Specified Letter of Credit shall be secured and guaranteed pursuant to the Collateral Documents and the Guaranty only to the extent that, and only for so long as, the other Obligations are so secured and
guaranteed and (b) any release of Collateral or Guarantors effected in the manner permitted by this Agreement and any other Loan Document shall not require the consent of the holders of Hedging Obligations under Secured Hedge Agreements, the
holders of Cash Management Obligations under Secured Cash Management Agreements or the Specified Letter of Credit Issuers in respect of Specified Letters of Credit or any agreements related thereto.
“OFAC” has the meaning specified in Section 5.17.
“Offered Amount” has the meaning specified in Section 2.05(1)(e)(D)(I).
“Offered Discount” has the meaning specified in Section 2.05(1)(e)(D)(I).
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the Chief
Operating Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer, the Secretary or any other duly appointed officer of the Borrower or any other Person, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person.
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“OID” means original issue discount.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Administrative Agent.
Counsel may be an employee of or counsel to the Borrower or the Administrative Agent.
“ordinary course of business”
means activity conducted in the ordinary course of business of the Borrower and any Restricted Subsidiary or consistent with past practice of the Borrower or any Restricted Subsidiary or consistent with the norms of the industry in which the
Borrower or any Restricted Subsidiary operates.
“Organizational Documents” means:
(1) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction);
(2) with
respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and
(3) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or
other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Original
Revolving Facility Maturity Date” has the meaning specified in the definition of “Maturity Date”.
“Original Term Loan Maturity Date” has the meaning specified in the definition of “Maturity Date”.
“Other Applicable Indebtedness” means Permitted Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or
any other Indebtedness permitted to be incurred under Section 7.02 that is secured by Liens on the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, together with Refinancing
Indebtedness in respect of any of the foregoing that is secured by Liens on the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations (in each case without regard to the control of remedies).
“Other Applicable Net Proceeds” means Net Proceeds or a comparable measure as determined in accordance with the
documentation governing Other Applicable Indebtedness.
“Other Commitments” means Other Revolving Commitments and/or
Other Term Loan Commitments.
“Other Loans” means one or more Classes of Other Revolving Loans and/or Other Term Loans
that result from a Refinancing Amendment.
“Other Revolving Commitments” means one or more Classes of Revolving
Commitments hereunder that result from a Refinancing Amendment.
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“Other Revolving Loans” means one or more Classes of Revolving Loans that
result from a Refinancing Amendment.
“Other Taxes” means all present or future stamp or documentary, intangible,
recording, filing, property or similar Taxes arising from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to,
any Loan Document, except any such Taxes that are imposed with respect to an assignment, grant of participation, designation of a new office for receiving payments by or on account of the Borrower or other transfer (other than an assignment,
designation or other transfer at the request of the Borrower pursuant to Section 3.07) as a result of any present or former connection between the assignee or assignor and the jurisdiction imposing such Tax (other than
connections resulting solely from such assignee or assignor having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other
transaction pursuant to any Loan or Loan Document).
“Other Term Loan Commitments” means one or more Classes of Term
Loan commitments hereunder that result from a Refinancing Amendment.
“Other Term Loans” means one or more Classes of
Term Loans that result from a Refinancing Amendment.
“Outstanding Amount” means (1) with respect to the Term
Loans, Revolving Loans and Swing Line Loans on any date, the outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Loans (including any refinancing of outstanding
Unreimbursed Amounts under Letters of Credit or Support Agreements or L/C Credit Extensions as a Revolving Borrowing) and Swing Line Loans, as the case may be, occurring on such date and (2) with respect to any L/C Obligations on any date, the
outstanding principal amount thereof (or in the case any undrawn Letter of Credit, the maximum amount available for drawing thereunder) 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 Borrowing) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.
“Overnight Rate” means, for any day, the greater of (1) the Federal Funds Rate and (2) an overnight rate
determined by the Administrative Agent, an Issuing Bank or a Swing Line Lender, as applicable, in accordance with banking industry rules on interbank compensation.
“Parent Company” means any Person that is a direct or indirect parent (which may be organized as, among other things, a
partnership) of the Borrower.
“Pari Passu Lien Debt” has the meaning specified in clause (39) of the
definition of “Permitted Liens”.
“Participant” has the meaning specified in
Section 10.07(4).
“Participant Register” has the meaning specified in
Section 10.07(5).
“Participating Lender” has the meaning specified in
Section 2.05(1)(e)(C)(II).
“Payment Block” has the meaning specified in
Section 2.05(2)(g).
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“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 the Borrower or any of their respective ERISA Affiliates or to which the Borrower or any of their respective ERISA Affiliates 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 in the preceding five plan years and with respect to which any obligation or
liability remains outstanding.
“Perfection Certificate” has the meaning specified in the Security Agreement.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Acquisition” has the meaning specified in clause (3) of the definition of “Permitted
Investments”.
“Permitted Asset Swap” means the substantially concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Borrower or any Restricted Subsidiary and another Person; provided that any cash or Cash Equivalents received in connection with a Permitted
Asset Swap that constitutes an Asset Sale shall be subject to Section 2.05(2)(b).
“Permitted Bond
Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) on the Borrower’s common equity purchased by the Borrower in connection with the issuance of any Convertible Indebtedness;
provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the
Borrower from the sale of such Convertible Indebtedness issued in connection with the Permitted Bond Hedge Transaction.
“Permitted Convertible Indebtedness Call Transaction” means any Permitted Bond Hedge Transaction and any Permitted Warrant
Transaction.
“Permitted Earlier Maturity Debt” means Indebtedness incurred, at the option of the Borrower (in its sole
discretion), (1) in the form of revolving facility Indebtedness, with a final maturity date prior to the Original Revolving Facility Maturity Date or (2) in the form of any Indebtedness not referenced in the foregoing subclause (1), (a) with a
final maturity date prior to the Original Term Loan Maturity Date and/or (b) a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans, in each case solely to the extent the
final maturity date of such Indebtedness is expressly restricted under an applicable Basket from occurring prior to the Original Term Loan Maturity Date (or, in the case of revolving facility Indebtedness, the Original Revolving Facility Maturity
Date) and/or the Weighted Average Life to Maturity of such Indebtedness is expressly restricted under an applicable Basket from being shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans (such Indebtedness,
“Restricted Earlier Maturity Debt”); provided that (1) the aggregate outstanding principal amount of Permitted Earlier Maturity Debt outstanding in reliance on this clause (1) does not at the time of
incurrence of such Indebtedness exceed the sum of (a) the greater of (i) $135,000,000 and (ii) 3.0% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) plus (b) the amount of
Indebtedness in the form of term “A” loans and (2) Permitted Earlier Maturity Debt shall include any Indebtedness the proceeds of which are held in an escrow or similar arrangement, to the extent that upon release of such proceeds
from such escrow or similar arrangement (other than a release effectuated in order to repay such Indebtedness), such Indebtedness would not constitute Restricted Earlier Maturity Debt.
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“Permitted Equal Priority Refinancing Debt” means secured Indebtedness
incurred by the Borrower and/or any Guarantor in the form of one or more series of senior secured notes, bonds or debentures or first lien secured loans (and, if applicable, any Registered Equivalent Notes issued in exchange therefor);
provided that (1) such Indebtedness is secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without
regard to the control of remedies) and is not secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (2) such Indebtedness satisfies the applicable requirements set forth in the provisos to the
definition of “Credit Agreement Refinancing Indebtedness”, (3) such Indebtedness is not at any time guaranteed by any Subsidiary of the Borrower other than Subsidiaries that are Guarantors and (4) the holders of such Indebtedness
(or their Debt Representative) and the Administrative Agent and/or Collateral Agent shall be party to an Intercreditor Agreement providing that the Liens on the Collateral securing such obligations shall rank equal in priority to the Liens on the
Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies).
“Permitted
Equity Issuance” means any sale or issuance of any Qualified Equity Interests of the Borrower or any Parent Company.
“Permitted Holders” means (a) the Investor and (b) any Person with which the Investor forms any
“group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) so long as, in the case of this clause (b), the Investor beneficially owns more than 50% of the relevant voting stock beneficially
owned by the group.
“Permitted Incremental Equivalent Debt” means Indebtedness issued, incurred or otherwise obtained
by the Borrower and/or any Restricted Subsidiary in respect of one or more series of senior unsecured notes, senior secured first lien or junior lien notes or subordinated notes (in each case in respect of the issuance of notes, whether issued in a
public offering, Rule 144A or other private placement or otherwise and in each case including revolving facilities), first lien or junior lien loans, unsecured or subordinated loans or any bridge financing in lieu of the foregoing (and any
Registered Equivalent Notes issued in exchange therefor) or secured or unsecured mezzanine Indebtedness or other Indebtedness; provided that:
(1) the aggregate principal amount of all Permitted Incremental Equivalent Debt shall not exceed the Available Incremental
Amount at the time of incurrence (it being understood that for purposes of this clause (1), references in Section 2.14(4)(c)(ii) and Section 2.14(4)(c)(iii) (other than the first proviso
thereto) to Incremental Loans, Incremental Commitments or Incremental Revolving Commitments shall be deemed to be references to Permitted Incremental Equivalent Debt);
(2) if such Permitted Incremental Equivalent Debt is secured by a Lien on the Collateral, such Permitted Incremental Equivalent
Debt shall be subject to an applicable Intercreditor Agreement; and
(3) such Permitted Incremental Equivalent Debt
(a) in the form of a revolving credit facility, shall not mature earlier than the Original Revolving Facility Maturity Date and (b) in the form of any Indebtedness not referenced in the foregoing clause (a) (i) shall not mature
earlier than the Original Term Loan Maturity Date and (ii) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans on
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the date of incurrence of such Permitted Incremental Equivalent Debt, in each case other than an earlier maturity date and/or shorter Weighted Average Life to Maturity (A) for customary
bridge financings, which, subject to customary conditions (as determined by the Borrower in good faith), would either be automatically converted into or required to be exchanged for permanent financing that does not provide for an earlier maturity
date or a shorter Weighted Average Life to Maturity than the Original Term Loan Maturity Date or the remaining Weighted Average Life to Maturity of the Closing Date Term Loans, as applicable or (B) for Permitted Earlier Maturity Debt;
provided further that “Permitted Incremental Equivalent Debt” may be incurred in the form of a bridge or other interim credit
facility intended to be refinanced or replaced with long term indebtedness (so long as such credit facility includes customary “rollover provisions” that satisfy the requirements of clause (3) above following such rollover or
upon the release of such debt from such escrow arrangements), in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, clause (3) of the first proviso in this definition
shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions.
“Permitted Indebtedness” means Indebtedness permitted to be incurred in accordance with
Section 7.02.
“Permitted Investments” means:
(1) any Investment in the Borrower or any Restricted Subsidiary;
(2) any Investment(s) in Cash Equivalents or Investment Grade Securities and Investments that were Cash Equivalents or
Investment Grade Securities when made;
(3) (a) any Investment by the Borrower or any Restricted Subsidiary in any Person
that is engaged (directly or through entities that will be Restricted Subsidiaries) in a Similar Business if as a result of such Investment (i) such Person becomes a Restricted Subsidiary or (ii) such Person, in one transaction or a series
of related transactions, is amalgamated, merged or consolidated with or into, or transfers or conveys substantially all of its assets or substantially all of its customer lists or assets constituting a business unit, a line of business or a division
of such Person (including, for the avoidance of doubt, “tuck in” acquisitions), to, or is liquidated into, the Borrower or a Restricted Subsidiary (a “Permitted Acquisition”) and (b) any Investment held by such
Person described in the preceding clause (a); provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation, transfer or conveyance;
(4) any Investment in securities or other assets not constituting Cash Equivalents or Investment Grade Securities and received
in connection with an Asset Sale made in accordance with Section 7.04 or any other disposition of assets not constituting an Asset Sale;
(5) any Investment existing on the Closing Date or made pursuant to binding commitments in effect on the Closing Date, in each
of the foregoing cases with respect to any such Investment or binding commitment in effect on the Closing Date in excess of $25,000,000 (individually), as set forth on Schedule 7.05, or an Investment consisting of any extension, modification,
replacement, renewal or reinvestment of any Investment or binding commitment existing on the Closing Date; provided that the amount of any such Investment or binding commitment may be increased only (a) as required by the terms of such
Investment or binding commitment as in existence on the Closing Date (including as a result of the accrual or accretion of interest or original issue discount or the issuance of
pay-in-kind securities) or (b) as otherwise permitted under this Agreement;
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(6) any Investment acquired by the Borrower or any Restricted Subsidiary:
(a) in exchange for any other Investment, accounts receivable or indorsements for collection or deposit held by the
Borrower or any Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of, or settlement of delinquent accounts and disputes with or judgments against, the issuer of such other Investment
or accounts receivable (including any trade creditor or customer);
(b) in satisfaction of judgments against other Persons;
(c) as a result of a foreclosure by the Borrower or any Restricted Subsidiary with respect to any secured Investment or
other transfer of title with respect to any secured Investment in default; or
(d) as a result of the settlement,
compromise or resolution of (i) litigation, arbitration or other disputes or (ii) obligations of trade creditors or customers that were incurred in the ordinary course of business or consistent with industry practice of the Borrower or any
Restricted Subsidiary, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer;
(7) Hedging Obligations permitted under Section 7.02(2)(j);
(8) any Investment in a Similar Business taken together with all other Investments made pursuant to this clause
(8) that are at that time outstanding not to exceed (as of the date such Investment is made) the greater of (a) $16,250,000 and (b) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis);
(9) Investments the payment for which consists of Equity Interests (other than Disqualified Stock) of the Borrower or Equity
Interests of any Parent Company; provided that such Equity Interests will not increase the amount available for Restricted Payments under clause (b) of Section 7.05(1);
(10) (a) guarantees of Indebtedness permitted under Section 7.02 (in the case of any guarantee by the
Borrower or any Subsidiary Guarantor of Indebtedness incurred by any Restricted Subsidiary that is not a Guarantor, to the extent such guarantee would be permitted by another clause of this definition of Permitted Investments), performance
guarantees and Contingent Obligations incurred in the ordinary course of business or consistent with industry practice and (b) the creation of Liens on the assets of the Borrower or any Restricted Subsidiary in compliance with
Section 7.01;
(11) any transaction to the extent it constitutes an Investment that is permitted
by and made in accordance with the provisions of Section 6.15(2) (except transactions described in clause (a), (b), (e), (i), (o), (v) or (w)(i) of such Section);
(12) Investments consisting of purchases and acquisitions of inventory, supplies, material, services, equipment or similar
assets or the licensing, sublicensing or contribution of IP Rights pursuant to joint marketing arrangements with other Persons;
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(13) Investments, taken together with all other Investments made pursuant to
this clause (13) that are at that time outstanding, not to exceed (as of the date such Investment is made) (a) the greater of (i) $16,250,000 and (ii) 0.36% of Total Assets for the most recently ended Test Period
(calculated on a pro forma basis), plus (b) any General Restricted Payments Basket Reallocated Amount(this clause (13), the “General Investments Basket”);
(14) so long as the Borrower is in compliance with Section 7.08 on a pro forma basis,
(i) Investments in or relating to a Securitization Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect any Qualified Securitization Facility or any repurchase obligation in connection
therewith; provided, however, that any such Investment in a Securitization Subsidiary is in the form of a contribution of additional Securitization Assets or equity and (ii) distributions or payments of Securitization Fees and
purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(15) loans and advances to, or guarantees of Indebtedness of, officers, directors, employees, consultants, independent
contractors and members of management in an aggregate outstanding amount not in excess of (as of the date such Investment is made) the greater of (a) $11,250,000 and (b) 0.25% of Total Assets for the most recently ended Test Period (calculated on a
pro forma basis);
(16) loans and advances to (a) employees, directors, officers, members of management,
independent contractors and consultants of the Borrower or any of its Subsidiaries, for business-related travel expenses, moving expenses, payroll advances and other similar expenses or payroll expenses, in each case incurred in the ordinary course
of business or consistent with past practice or consistent with industry practice or (b) to future, present and former employees, directors, officers, members of management, independent contractors and consultants (and their Controlled
Investment Affiliates and Immediate Family Members) of the Borrower, any of its Subsidiaries, the Manager (or its Affiliates) and/or any joint venture to the extent permitted by Requirements of Law to fund such Person’s purchase of Equity
Interests of the Borrower or any Parent Company;
(17) advances, loans or extensions of trade credit or prepayments to
suppliers or loans or advances made to distributors, in each case, in the ordinary course of business or consistent with past practice or consistent with industry practice by the Borrower or any Restricted Subsidiary;
(18) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or
related activities arising in the ordinary course of business or consistent with industry practice;
(19) Investments
consisting of purchases and acquisitions of assets or services in the ordinary course of business or consistent with industry practice;
(20) Investments made in the ordinary course of business or consistent with industry practice in connection with obtaining,
maintaining or renewing client contracts and loans or advances made to distributors;
(21) 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 industry
practice;
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(22) the purchase, redemption or other acquisition of any Indebtedness of
the Borrower or any Restricted Subsidiary to the extent not otherwise prohibited hereunder;
(23) Investments in
Unrestricted Subsidiaries or other joint ventures, taken together with all other Investments made pursuant to this clause (23) that are at that time outstanding, without giving effect to the sale of an Unrestricted
Subsidiary or joint venture, as applicable, to the extent the proceeds of such sale do not consist of, or have not been subsequently sold or transferred for, Cash Equivalents or marketable securities, not to exceed (as of the date such Investment is
made) the greater of (a) $16,250,0000 and (b) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis);
(24) Investments in the ordinary course of business or consistent with industry practice consisting of Uniform Commercial Code
Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers;
(25) any
Investment by any Captive Insurance Subsidiary in connection with its provision of insurance to the Borrower or any of its Subsidiaries, which Investment is made in the ordinary course of business or consistent with industry 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;
(26) Investments made as part of, to effect or resulting from the Transactions;
(27) Investments of assets relating to non-qualified deferred payment plans or other
arrangements for any present or former employees, directors, members of management, officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of the Borrower, any of its Subsidiaries, the Manager (or
its Affiliates) and/or any joint venture, in the ordinary course of business or consistent with industry practice;
(28)
intercompany current liabilities owed to Unrestricted Subsidiaries or joint ventures incurred in the ordinary course of business or consistent with industry practice in connection with the cash management operations of the Borrower and its
Subsidiaries;
(29) acquisitions of obligations of one or more directors, officers or other employees or consultants or
independent contractors of any Parent Company, the Borrower or any Subsidiary of the Borrower in connection with such director’s, officer’s, employee’s, consultant’s or independent contractor’s acquisition of Equity
Interests of the Borrower or any direct or indirect parent thereof to the extent no cash is actually advanced by the Borrower or any Restricted Subsidiary to such directors, officers, employees, consultants or independent contractors in connection
with the acquisition of any such obligations;
(30) Investments constituting promissory notes or other non-cash proceeds of dispositions of assets to the extent permitted under Section 7.04;
(31) Investments resulting from pledges and deposits permitted pursuant to the definition of “Permitted Liens”;
(32) loans and advances to any direct or indirect parent of the Borrower in lieu of and not in excess of the amount of
(after giving effect to any other loans, advances or Restricted Payments in respect thereof) Restricted Payments to the extent permitted to be made in cash to such parent in accordance with Section 7.05 at such time, such
Investment being treated for purposes of the applicable clause of Section 7.05, including any limitations, as if a Restricted Payment were made pursuant to such applicable clause;
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(33) any Investments if (a) on a pro forma basis after giving
effect to such Investment, the Total Debt to Total Assets Ratio does not exceed 82.0% as of the last day of the most recently ended Test Period and (b) no Event of Default under Section 8.01(1) or
Section 8.01(6) with respect to the Borrower has occurred and is continuing or would result therefrom;
(34) Permitted Bond Hedge Transactions;
(35) Indebtedness of the Borrower or any of its Restricted Subsidiaries assigned to, or repurchased or redeemed by, the
Borrower or any of its Restricted Subsidiaries to the extent not otherwise prohibited hereunder;
(36) Investments made by
a Restricted Subsidiary that is not a Loan Party to the extent such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment in such Restricted Subsidiary by a Loan Party otherwise permitted hereunder;
provided that no Investment may be made in any Unrestricted Subsidiary in reliance on this clause (36); provided, however, that, notwithstanding the foregoing, for purposes of determining availability under this Agreement
for making Restricted Payments and Investments, in the event any Restricted Subsidiary makes a Permitted Investment in an Unrestricted Subsidiary in a manner in which such Investment was first made by a Loan Party in a Restricted Subsidiary that is
not a Loan Party, substantially concurrently with such Investment being first made by a Loan Party in a Restricted Subsidiary that is not a Loan Party, and such Restricted Subsidiary that is not a Loan Party thereafter, directly or indirectly, uses
the proceeds of such Investment to make a further Investment in an Unrestricted Subsidiary in a manner otherwise permitted under this Agreement, such Investment will be deemed to have been made only by the applicable Loan Party into such
Unrestricted Subsidiary;
(37) any Investments in CRE Finance Assets, Real Estate Investments and related derivatives; and
(38) Investments by any Loan Party in any Subsidiary (the “Acquiring Subsidiary”) of the type described
in clauses (2) through (6) of the definition of “Excluded Subsidiary” to the extent consisting of contributions, or other dispositions, of Equity Interests issued by a Subsidiary described in clauses
(2) through (6) of the definition of “Excluded Subsidiary” to such Subsidiary; provided that, to the extent that such Equity Interests are subject to a lien securing the Obligations (the “Initial
Lien”), then the Equity Interests of such Acquiring Subsidiary shall be subject (a) directly to a lien securing such Obligations or (b) indirectly by way of a pledge of the Equity Interests in a first-tier Foreign Subsidiary that
is a direct or indirect parent of such Acquiring Subsidiary and a direct Subsidiary of a Loan Party (the “New Lien”), which New Lien shall be in the same (or greater) percentage than such Initial Lien.
“Permitted Junior Priority Refinancing Debt” means secured Indebtedness incurred by the Borrower and/or any Guarantor in
the form of one or more series of junior lien secured notes, bonds or debentures or junior lien secured loans (and, if applicable, any Registered Equivalent Notes issued in exchange therefor); provided that (1) such Indebtedness is
secured by Liens on all or a portion of the Collateral on a junior priority basis to the Liens on Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies) and is not secured by any property
or assets of the Borrower or any Restricted Subsidiary other than the Collateral, (2) such Indebtedness satisfies the
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applicable requirements set forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness”, (3) such Indebtedness is not at any time guaranteed by any
Subsidiary of the Borrower other than Subsidiaries that are Guarantors and (4) the holders of such Indebtedness (or their Debt Representative) and the Administrative Agent and/or the Collateral Agent shall be party to an Intercreditor Agreement
providing that the Liens on the Collateral securing such obligations shall rank junior to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies).
“Permitted Liens” means, with respect to any Person:
(1) Liens created pursuant to any Loan Document;
(2) Liens, pledges or deposits made in connection with:
(a) workers’ compensation laws, unemployment insurance, health, disability or employee benefits or other social security
laws or similar legislation or regulations,
(b) insurance-related obligations (including in respect of deductibles,
self-insured retention amounts and premiums and adjustments thereto) or indemnification obligations of (including obligations in respect of letters of credit, bank guarantees or similar documents or instruments for the benefit of) insurance carriers
providing property, casualty or liability insurance or otherwise supporting the payment of items set forth in the foregoing clause (a), or
(c) bids, tenders, contracts, statutory obligations, surety, indemnity, warranty, release, appeal or similar bonds, or with
regard to other regulatory requirements, completion guarantees, stay, customs and appeal bonds, performance bonds, bankers’ acceptance facilities, and other obligations of like nature (including those to secure health, safety and environmental
obligations) (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash, Cash Equivalents or U.S. government bonds to secure surety
or appeal bonds to which such Person is a party, or deposits as security for the payment of rent, contested Taxes or import duties and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to
support the same, in each case incurred in the ordinary course of business or consistent with industry practice;
(3) Liens
imposed by law, such as landlords’, carriers’, warehousemen’s, materialmen’s, repairmen’s, construction, mechanics’ or other similar Liens, or landlord Liens specifically created by contract (a) for sums not
yet overdue for a period of more than sixty (60) days or, if more than sixty (60) days overdue, are unfiled and no other action has been taken to enforce such Liens, (b) being contested in good faith by appropriate actions or other
Liens arising out of or securing judgments or awards against such Person with respect to which such Person will then be proceeding with an appeal or other proceedings for review if such Liens are adequately bonded or adequate reserves with respect
thereto are maintained on the books of such Person in accordance with GAAP or (c) where the failure to pay or discharge the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(4) Liens for Taxes, assessments or other governmental charges (a) that are not yet overdue for more than thirty
(30) days or not yet payable or not subject to penalties for nonpayment or which are being contested in good faith by appropriate actions if adequate reserves with respect thereto are maintained on the books of such Person in accordance with
GAAP or (b) where the failure to pay or discharge the same would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
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(5) Liens in favor of issuers of performance, surety, bid, indemnity,
warranty, release, appeal or similar bonds, instruments or obligations or with respect to regulatory requirements or letters of credit or banker’s acceptance issued, and completion guarantees provided, in each case, pursuant to the request of
and for the account of such Person in the ordinary course of its business or consistent with past practice or industry practice;
(6) survey exceptions, encumbrances, leases, ground leases, easements, restrictions, protrusions, encroachments 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 or irregularities in title and similar encumbrances) as to the use of real property or Liens incidental to the conduct of the business of such Person or to the
ownership of its real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially impair their use in the operation of the business of such Person and exceptions on Mortgage Policies insuring Liens
granted on Mortgaged Properties;
(7) Liens securing obligations in respect of Indebtedness, Disqualified Stock or
Preferred Stock permitted to be incurred pursuant to clauses (d), (l), (m), (n), (o), (w), (ee), (ff), (gg), (hh) or (jj) (solely to the extent Liens on the underlying
Indebtedness as to which the applicable items in clause (jj) apply otherwise constitute Permitted Liens) of Section 7.02(2) or, with respect to assumed or acquired Indebtedness, Disqualified Stock or Preferred Stock
not incurred in contemplation of the relevant investment or acquisition, clause (n) or (hh) of Section 7.02(2); provided that:
(a) Liens securing obligations relating to any Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred
pursuant to clause (m) of Section 7.02(2) relate only to obligations relating to Refinancing Indebtedness that is secured by Liens on the same assets as the assets securing the Refinanced Debt (as defined in the
definition of “Refinancing Indebtedness”), plus improvements, accessions, proceeds or dividends or distributions in respect thereof and after-acquired property, or serves to refund, refinance, extend, replace, renew or defease
Indebtedness, Disqualified Stock or Preferred Stock incurred under clause (d), (l) or (m) of Section 7.02(2);
(b) Liens securing obligations relating to Indebtedness or Disqualified Stock permitted to be incurred pursuant to clauses
(w)(i), (ee) or (ff) of Section 7.02(2) extend only to the assets of Subsidiaries that are not Guarantors;
(c) Liens securing obligations in respect of Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred
pursuant to clause (d) of Section 7.02(2) extend only to the assets so purchased, replaced, leased, expanded, constructed, installed, repaired or improved and proceeds and products thereof; provided further
that individual financings of assets provided by a counterparty may be cross-collateralized to other financings of assets provided by such counterparty;
(d) If any such Liens secure Indebtedness for borrowed money incurred pursuant clauses (l) (other than, for the
avoidance of doubt, any Indebtedness that is not secured by Collateral), (n) (other than, for the avoidance of doubt, any Indebtedness that is not secured by Collateral) or (hh) (other than, for the avoidance of doubt, any Indebtedness
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that is not secured by Collateral) of Section 7.02(2) or clause (m) of Section 7.02(2) (with respect to Indebtedness incurred
pursuant to the foregoing provisions), at the election of the Borrower, such Liens shall be subject to the applicable Intercreditor Agreement(s) (except, in each case, to the extent any such Liens are on property that does not constitute
Collateral);
(e) Liens securing obligations in respect of assumed or acquired Indebtedness, Disqualified Stock or
Preferred Stock not incurred in contemplation of the relevant investment or acquisition permitted to be assumed pursuant to clauses (n) or (hh) of Section 7.02(2) are solely on acquired property or the
assets of the acquired entity (other than after-acquired property that is (a) affixed or incorporated into the property covered by such Lien, (b) after-acquired property subject to a Lien securing such Indebtedness, the terms of which
Indebtedness require or include 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
(c) the proceeds and products thereof); and
(f) Liens on Collateral securing obligations in respect of Indebtedness,
Disqualified Stock or Preferred Stock permitted to be incurred pursuant to clause (l)(i)(A) or (l)(i)(B) of Section 7.02(2) shall be junior in right of security to the Liens securing any First Lien Obligations
under this Agreement;
(8) Liens existing, or provided for under binding contracts existing, on the Closing Date
(provided that any such Lien securing Indebtedness for borrowed money with an individual outstanding principal amount on the Closing Date in excess of $25,000,000 (individually) shall be set forth on Schedule 7.01);
(9) Liens on property or shares of stock or other assets of a Person at the time such Person becomes a Subsidiary; provided
that such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary;
(10) Liens on property or other assets at the time the Borrower or a Restricted Subsidiary acquired the property or such other
assets, including any acquisition by means of a merger, amalgamation or consolidation with or into the Borrower or any Restricted Subsidiary (provided that such Liens are not created or incurred in connection with, or in contemplation of,
such acquisition, amalgamation, merger or consolidation) and any replacement, extension or renewal of any such Lien (to the extent the Indebtedness and other obligations secured by such replacement, extension or renewal Liens are permitted by this
Agreement); provided that such replacement, extension or renewal Liens do not cover any property other than the property that was subject to such Liens prior to such replacement, extension or renewal (plus after-acquired property that
is (a) affixed or incorporated into the property covered by such Lien, (b) after-acquired property subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include 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) or (c) the proceeds and products thereof);
(11) Liens securing obligations in respect of Indebtedness or other obligations of a Restricted Subsidiary owing to the
Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 7.02;
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(12) Liens securing (a) Hedging Obligations, (b) obligations in
respect of Cash Management Services and (c) Specified Letter of Credit Obligations;
(13) Liens on specific items of
inventory or other goods and proceeds of any Person securing such Person’s accounts payable or similar obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(14) (a) leases, subleases, licenses or sublicenses (which
in the case of IP Rights shall be non-exclusive) (or other similar agreement under which the Borrower or any Restricted Subsidiary has granted rights to third parties to access or use the Borrower’s or
any Restricted Subsidiary’s IP Rights, products, technologies or services) that do not either (i) materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole, or (ii) secure any
Indebtedness and (b) licenses or sublicenses granted by the Borrower or any of its Restricted Subsidiaries to customers in the ordinary course of business;
(15) Liens arising from Uniform Commercial Code (or equivalent statutes) financing statement filings regarding operating
leases, consignments or accounts entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business or consistent with industry practice or purported Liens evidenced by the filing of precautionary Uniform Commercial Code
(or equivalent statutes) financing statements or similar public filings;
(16) Liens in favor of the Borrower or any
Guarantor;
(17) Liens on equipment or vehicles of the Borrower or any Restricted Subsidiary granted in the ordinary course
of business or consistent with industry practice;
(18) Liens on Securitization Assets arising in connection with a
Qualified Securitization Financing;
(19) Liens to secure any modification, refinancing, refunding, extension, renewal or
replacement (or successive modification, refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness, Disqualified Stock or Preferred Stock secured by any Lien referred to in clauses (7),
(8), (9), (10) or this clause (19) of this definition; provided that: (a) such new Lien will be limited to all or part of the same property that was subject to the original Lien (plus
improvements, accessions, proceeds or dividends or distributions in respect thereof and after-acquired property), (b) the Indebtedness, Disqualified Stock or Preferred Stock secured by such Lien at such time is not increased to any amount greater
than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness, Disqualified Stock or Preferred Stock described under such clauses (7), (8), (9), (10) or this clause
(19) at the time the original Lien became a Permitted Lien hereunder, plus (ii) any accrued and unpaid interest on the Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued and unpaid dividends
on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or defeased, plus (iii) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents
governing such refinanced Indebtedness, Preferred Stock or Disqualified Stock and any defeasance costs and any fees and expenses (including original issue discount, upfront fees, underwriting, arrangement and similar fees) incurred in connection
with the issuance of such new Indebtedness, Preferred Stock or Disqualified Stock or the extension, replacement, refunding, refinancing, renewal or defeasance of such refinanced Indebtedness, Preferred Stock or Disqualified Stock and (c) to the
extent required, or at the election of the Borrower, permitted, by the terms hereof in connection with the original incurrence of Indebtedness so modified, refinanced, refunded, extended, renewed or replaced, to the extent such Indebtedness as
modified, refinanced, refunded, extended, renewed or replaced is secured by Liens on the Collateral, such Liens shall be subject to an applicable Intercreditor Agreement;
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(20) deposits made or other security provided to secure liability to
insurance brokers, carriers, underwriters or self-insurance arrangements, including Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(21) Liens securing obligations in an aggregate outstanding amount not to exceed (as of the date any such Lien is incurred) the
greater of (a) $60,000,000 and (b) 1.325% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis), which, at the election of the Borrower, shall be subject to the applicable Intercreditor Agreement(s)
(this clause (21), the “General Liens Basket”);
(22) 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;
(23) (a) the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of
business or consistent with industry practice, (b) Liens arising out of conditional sale, title retention or similar arrangements for the sale of goods in the ordinary course of business or consistent with industry practice and (c) Liens
arising by operation of law under Article 2 of the Uniform Commercial Code;
(24) Liens securing judgments for the payment
of money not constituting an Event of Default under Section 8.01(7);
(25) Liens (a) of a
collection bank arising under Section 4-208 or 4-210 of the Uniform Commercial Code on items in the course of collection, (b) attaching to commodity trading
accounts or other brokerage accounts incurred in the ordinary course of business or consistent with industry practice, (c) in favor of banking or other institutions or other electronic payment service providers arising as a matter of law or
under general terms and conditions encumbering deposits or margin deposits or other funds maintained with such institution (including the right of setoff) and that are within the general parameters customary in the banking industry and (d) in
favor of any servicer, depository or cash management bank, title company, custodian, bailee or other service provider in connection with the administration of any Asset Financing Facility or CRE Financing;
(26) Liens deemed to exist in connection with Investments in repurchase agreements permitted under this Agreement;
provided that such Liens do not extend to assets other than those that are subject to such repurchase agreements;
(27) Liens that are contractual rights of setoff (a) relating to the establishment of depository relations with banks or
other deposit-taking financial institutions or other electronic payment service providers and not given in connection with the issuance of Indebtedness, (b) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business or consistent with industry practice of the Borrower or any Restricted Subsidiary or (c) relating to purchase orders and other agreements entered into with customers of the
Borrower or any Restricted Subsidiary in the ordinary course of business or consistent with industry practice;
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(28) Liens on cash proceeds (as defined in Article 9 of the Uniform
Commercial Code) of assets sold that were subject to a Lien permitted hereunder;
(29) any encumbrance or restriction
(including put, call arrangements, tag, drag, right of first refusal and similar rights) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(30) Liens (a) on cash advances or cash earnest money deposits in favor of the seller of any property to be acquired in an
Investment permitted under this Agreement to be applied against the purchase price for such Investment and (b) consisting of a letter of intent or an agreement to sell, transfer, lease or otherwise dispose of any property in a transaction
permitted under Section 7.04;
(31) ground leases, subleases, licenses or sublicenses in respect
of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;
(32) Liens in
connection with any Sale-Leaseback Transaction(s);
(33) Liens on Capital Stock or other securities of an Unrestricted
Subsidiary securing obligations of such Person;
(34) any interest or title of a lessor, sublessor, licensor or sublicensor
or secured by a lessor’s, sublessor’s, licensor’s or sublicensor’s interest under leases, licenses or sublicenses entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business or
consistent with industry practice;
(35) deposits of cash with the owner or lessor of premises leased and operated by the
Borrower or any of its Subsidiaries in the ordinary course of business or consistent with industry practice of the Borrower and such Subsidiary to secure the performance of the Borrower’s or such Subsidiary’s obligations under the terms
of the lease for such premises;
(36) rights of set-off, banker’s liens,
netting arrangements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions in relation to the maintenance or administration of deposit accounts, securities accounts, cash management
arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments;
(37)
Liens on cash and Cash Equivalents used to satisfy or discharge Indebtedness; provided that such satisfaction or discharge is permitted under this Agreement;
(38) receipt of progress payments and advances from customers in the ordinary course of business or consistent with industry
practice to the extent the same creates a Lien on the related inventory and proceeds thereof and Liens on property or assets under construction arising from progress or partial payments by a third party relating to such property or assets;
(39) Liens to secure obligations in respect of (a) Indebtedness, Disqualified Stock or Preferred Stock permitted to be
incurred or issued pursuant to Section 7.02; provided that, in each case, after giving pro forma effect to the incurrence or issuance of the then-proposed Indebtedness, Disqualified Stock or Preferred Stock
(and without netting any cash received from the incurrence or issuance of such proposed Indebtedness, Disqualified Stock or Preferred Stock), (i) if such Indebtedness, Disqualified Stock or Preferred Stock is secured by Liens on the Collateral on a
pari
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passu basis with the Liens on the Collateral that secure the Closing Date Term Loans (without regard to control of remedies) (“Pari Passu Lien Debt”), at the election of
the Borrower, the Senior Debt to Total Assets Ratio for the Test Period does not exceed, at the election of the Borrower, either (A) 80.0% or (B) to the extent such Indebtedness, Disqualified Stock or Preferred Stock is incurred in connection
with a Permitted Acquisition or other Investment permitted under this Agreement, the Senior Debt to Total Assets Ratio for the Test Period most recently ended immediately prior to giving effect to such incurrence of Indebtedness or the issuance of
such Disqualified Stock or Preferred Stock or (ii) if such Indebtedness, Disqualified Stock or Preferred Stock is secured by Liens on the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the Closing Date
Term Loans (“Junior Lien Debt”), the Total Debt to Total Assets Ratio does not exceed, at the election of the Borrower, either (I) 82.0% or (II) to the extent such Indebtedness is incurred or such Disqualified Stock or
Preferred Stock is issued in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the Total Debt to Total Assets Ratio for the Test Period most recently ended calculated immediately prior to giving effect to
such incurrence of Indebtedness or the issuance of such Disqualified Stock or Preferred Stock; provided, further that such Liens incurred under this clause (39) in respect of (x) Pari Passu Lien Debt shall be subject
to the applicable Intercreditor Agreement(s) (or the representative for the holders of such Pari Passu Lien Debt or the holders of such Pari Passu Lien Debt shall become a party to an applicable existing Intercreditor Agreement) and (y) Junior
Lien Debt shall be subject to the applicable Intercreditor Agreement(s) (or the representative for the holders of such Junior Lien Debt or the holders of such Junior Lien Debt shall become a party to an applicable existing Intercreditor Agreement)
and (b) any Refinancing Indebtedness in respect thereof;
(40) agreements to subordinate any interest of the Borrower
or any Restricted Subsidiary in any accounts receivable or other proceeds arising from inventory consigned by the Borrower or any Restricted Subsidiary pursuant to an agreement entered into in the ordinary course of business or consistent with
industry practice;
(41) Liens arising pursuant to Section 107(l) of the Comprehensive Environmental Response,
Compensation and Liability Act or similar provision of any Environmental Law;
(42) Liens disclosed by any title insurance
reports or policies delivered on or prior to the Closing Date and any replacement, extension or renewal of any such Lien (to the extent the Indebtedness and other obligations secured by such replacement, extension or renewal Liens are permitted by
this Agreement); provided that such replacement, extension or renewal Liens do not cover any property other than the property that was subject to such Liens prior to such replacement, extension or renewal;
(43) rights reserved or vested in any Person by the terms of any lease, license, sublicense, franchise, grant or permit held by
the Borrower or any of its Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, sublicense, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;
(44) restrictive covenants affecting the use to which real property may be put; provided that the covenants are complied
with;
(45) security given to a public utility or any municipality or governmental authority when required by such utility
or authority in connection with the operations of that Person in the ordinary course of business or consistent with industry practice;
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(46) zoning, building and other similar land use restrictions, including
site plan agreements, development agreements and contract zoning agreements;
(47) Liens on cash or Cash Equivalents
collateral securing obligations in respect of commercial or trade letters of credit issued under clause (b) of Section 7.02(2) or letters of credit, bank guarantees, bankers’ acceptances or other similar
instruments issued under clauses (gg) or (ii) of Section 7.02(2) (it being understood that any cash or Cash Equivalents collateral subject to a Lien incurred pursuant to this clause (47) shall
not be deemed “restricted” on account of such lien for purposes of determining whether such cash or Cash Equivalents collateral constitutes part of Liquidity);
(48) Liens securing (a) Permitted Incremental Equivalent Debt, (b) Permitted Equal Priority Refinancing Debt or
(c) Permitted Junior Priority Refinancing Debt, and, in each case, Liens securing any Refinancing Indebtedness in respect thereof;
(49) (a) Liens on the assets of Restricted Subsidiaries that are not Loan Parties securing Indebtedness or other obligations of
such Restricted Subsidiaries or any other Restricted Subsidiaries that are not Loan Parties that is permitted by (i) Section 7.02 or (ii) otherwise not prohibited by this Agreement, (b) Liens on Equity
Interests in joint ventures (i) securing obligations of such joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement and (c) Liens on the assets of Restricted Subsidiaries that are not Loan Parties
securing Indebtedness of Foreign Subsidiaries;
(50) Liens on assets of Restricted Subsidiaries that are Foreign
Subsidiaries (a) securing Indebtedness and other obligations of such Foreign Subsidiaries or (b) to the extent arising mandatorily under applicable Law;
(51) Liens on Escrowed Proceeds for the benefit of the related holders of debt securities or other Indebtedness (or the
underwriters, trustee, escrow agent or arrangers thereof) or on cash set aside at the time of the incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent such cash or government securities
prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose;
(52) Liens securing obligations in respect of Indebtedness, Disqualified Stock or Preferred Stock assumed or acquired in
connection with a Permitted Acquisition or similar Investment; provided that any such Liens shall be solely on acquired property or the assets of the acquired entity (other than after-acquired property that is (a) affixed or incorporated
into the property covered by such Lien, (b) after-acquired property subject to a Lien securing such Indebtedness, the terms of which Indebtedness require or include 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 (c) the proceeds and products thereof); and
(53) Liens (a) pursuant to any Asset Financing Facilities and CRE Financings on the assets financed by such Asset
Financing Facilities or CRE Financings, as applicable, (b) on any corresponding Financing Equity and/or (c) on other assets ancillary to such CRE Finance Asset or Real Estate Investments owned by the Financing SPE Subsidiary under such
Asset Financing Facility or CRE Financing, as applicable.
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For purposes of this definition, the term “Indebtedness” will be deemed to
include interest and other obligations payable on or with respect to such Indebtedness. With respect to any Permitted Liens subject to applicable Intercreditor Agreement(s) as described above, without limiting the generality of
Section 9.15, the Administrative Agent and the Collateral Agent are hereby authorized to, and shall, execute and deliver on behalf of the Secured Parties any Intercreditor Agreement (including any supplement thereto) in
respect of such Permitted Liens without any further consent of the Lenders or any other Secured Party.
Any Liens incurred to refinance
Liens incurred pursuant to clauses (8), (21) and (39) above will be permitted to secure additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay (1) any accrued and unpaid interest on the
associated Indebtedness, any accrued and unpaid dividends on the associated Preferred Stock, and any accrued and unpaid dividends on the associated Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or defeased and
(2) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such associated refinanced Indebtedness, Preferred Stock or Disqualified Stock and any defeasance costs and
any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Preferred Stock or Disqualified Stock or the extension, replacement, refunding, refinancing,
renewal or defeasance of such associated refinanced Indebtedness, Preferred Stock or Disqualified Stock (and with respect to associated Indebtedness under Designated Revolving Commitments, including an amount equal to any unutilized Designated
Revolving Commitments being refinanced, extended, replaced, refunded, renewed or defeased to the extent permanently terminated at the time of incurrence of such Liens in connection with such Refinancing Indebtedness).
“Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by the Borrower and/or any Guarantor in the
form of one or more series of senior unsecured notes, bonds or debentures or unsecured loans (and, if applicable, any Registered Equivalent Notes issued in exchange therefor); provided that (1) such Indebtedness satisfies the applicable
requirements set forth in the provisos to the definition of “Credit Agreement Refinancing Indebtedness” and (2) such Indebtedness is not at any time guaranteed by any Subsidiary of the Borrower other than Subsidiaries that are
Guarantors.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively
equivalent derivative transaction) on the Borrower’s or a Parent Company’s common equity sold by the Borrower or a Parent Company substantially concurrently with a related Permitted Bond Hedge Transaction.
“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a
Foreign Plan or a Multiemployer Plan, established or maintained by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any of their respective ERISA Affiliates.
“Platform” has the meaning specified in Section 6.02.
“Pledged Collateral” has the meaning specified in the Security Agreement.
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation,
dissolution or winding up.
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“Previously Absent Financial Maintenance Covenant” means, at any time,
(1) any financial maintenance covenant that is not contained in this Agreement at such time and (2) any financial maintenance covenant, a corresponding version of which is already contained in this Agreement at such time but with covenant
levels and component definitions (to the extent relating to such corresponding version) that are less restrictive as to the Borrower and the Restricted Subsidiaries than those in the applicable Incremental Amendment, Refinancing Amendment, Extension
Amendment or amendment in respect of Replacement Loans or any documents relating to Credit Agreement Refinancing Indebtedness, Permitted Incremental Equivalent Debt or other Indebtedness (if any) as to which the inclusion of a Previously Absent
Financial Maintenance Covenant is restricted in a similar manner hereunder.
“primary obligations” has the meaning
specified in the definition of “Contingent Obligations”.
“primary obligor” has the meaning specified in
the definition of “Contingent Obligations”.
“Private-Side Information” means any information with
respect to the Borrower and its Subsidiaries that is not Public-Side Information.
“Pro Rata Share” means, with respect
to each Lender at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments (or, if the Revolving Commitments have terminated in full, Revolving Exposure) and,
if applicable and without duplication, Term Loans of such Lender at such time and the denominator of which is the amount of the Aggregate Commitments (or, if the Revolving Commitments have terminated in full, Revolving Exposure) and, if applicable
and without duplication, Term Loans at such time; provided that when used with respect to (1) Commitments, Loans, interest and fees under a Revolving Facility, “Pro Rata Share”, shall mean with respect to any Lender such
Lender’s Applicable Percentage and (2) Commitments, Loans and interest under any Term Facility, “Pro Rata Share”, shall mean, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the amount of the Term Commitments and Term Loans of such Lender under such Term Facility at such time and the denominator of which is the amount of the aggregate Term Commitments and Term Loans under
such Term Facility at such time.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of
Labor, as any such exemption may be amended from time to time.
“Public Company Costs” means the costs relating to
establishing and maintaining compliance with the Sarbanes-Oxley Act of 2002, as amended, and other expenses arising out of or incidental to the Borrower’s or its Restricted Subsidiaries’ establishment or maintenance of compliance with
the obligations of a reporting company, including costs, fees and expenses (including legal, accounting and other professional fees) relating to compliance with provisions of the Securities Act and the Exchange Act.
“Public Lender” has the meaning specified in Section 6.02.
“Public-Side Information” means information that does not constitute material
non-public information (within the meaning of United States federal and state securities laws) with respect to the Borrower or any of its Subsidiaries or any of their respective securities.
“Purchase Money Obligations” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction
or improvement of property (real or personal) or assets (other than Capital Stock), and whether acquired through the direct acquisition of such property or assets, or otherwise.
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“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).
“QFC Credit Support”
has the meaning specified in Section 10.26.
“Qualified ECP Guarantor” means, in respect
of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as
constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering
into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity Interests” means
any Equity Interests that are not Disqualified Stock.
“Qualified Proceeds” means the fair market value of assets that
are used or useful in, or Capital Stock of any Person engaged in, a Similar Business.
“Qualified Securitization
Facility” means any Securitization Facility of a Securitization Subsidiary (1) constituting a securitization financing facility that meets the following conditions: (a) the Board of Directors 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 Borrower and the applicable Restricted Subsidiary or Securitization Subsidiary
and (b) all sales or contributions of Securitization Assets and related assets to the Securitization Subsidiary are made at fair market value (as determined in good faith by the Borrower), and (c) the financing terms, covenants termination
events and other provisions thereof, including any Standard Securitization Undertakings, shall be market terms. The grant of a security interest in any Securitization Assts of the Borrower or any of the Restricted Subsidiaries (other than a
Securitization Subsidiary) to secure Indebtedness under this Agreement prior to engaging in any Securitization Facility shall not be deemed a Qualified Securitization Facility. For the avoidance of doubt, no Asset Financing Facility or CRE Financing
is required to meet the conditions for a Qualified Securitization Financing in order to be permitted to be incurred hereunder and Qualified Securitization Financings shall be deemed to exclude Asset Financing Facilities and CRE Financings.
“Qualifying Lender” has the meaning specified in Section 2.05(1)(e)(D)(III).
“Rating Agencies” means Moody’s and S&P, or if Moody’s or S&P (or both) does not make a rating on the
relevant obligations publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower that will be substituted for Moody’s or S&P (or both), as the case may be.
“Real Estate Asset” means, at any time of determination, all right, title and interest (fee, leasehold or otherwise) of any
Loan Party in and to real property (including, but not limited to, land, improvements and fixtures thereon).
“Real Estate
Investment” means (1) any Real Estate Asset that is not used by the Borrower or its Restricted Subsidiaries for operational purposes (including, for the avoidance of doubt, any such Real Estate Asset (a) subject to a
sale-leaseback, ground lease or other long-term net lease, in each case, in respect of which the Borrower or any of its Restricted Subsidiaries is the landlord or lessor, as applicable, (b) acquired in connection with a foreclosure or other
exercise of remedies under any CRE Finance Asset and/or (c) which is, or is in the process of becoming, subject to any CRE Financing) and/or direct or indirect interests therein (including, without limitation, preferred equity and/or syndicated
equity interests), (2) any rights,
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assets or investments similar to or derivative of, any item referred to in the foregoing clause (a) and/or the acquisition, financing, operation or administration thereof (regardless
of whether or not the Borrower or any of its Restricted Subsidiaries owns the applicable Real Estate Asset or direct or indirect interest therein) (including, without limitation, management, franchise and/or other operational rights) and
(3) Capital Stock in any Person substantially all of whose assets, directly or indirectly, are comprised of one or more of the items referred to in the foregoing clauses (1) and/or (2).
“Recourse Indebtedness” means with respect to any person, on any date of determination, the amount of Indebtedness for
which such person has recourse liability (including without limitation through a guarantee); provided, that Indebtedness arising pursuant to Customary Recourse Exceptions shall not constitute Recourse Indebtedness until such time (if any) as
demand has been made for the payment or performance of such Indebtedness or the conditions to triggering such recourse under the related agreement have occurred.
“Reference Rate” means (1) with respect to the calculation of the All-In Yield
in the case of Loans of an applicable Class that includes a Term SOFR floor, an interest rate per annum equal to the rate per annum equal to Term SOFR and (2) with respect to the calculation of the All-In Yield in the case of Loans of an applicable Class that includes a Base Rate floor, the interest rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1.00%, (b)
the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States 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) and (c) Term SOFR on such day for an Interest Period of one (1) month plus 1.00% (or, if such day is not a Business Day, the
immediately preceding Business Day).
“Refinance” has the meaning set forth in the definition of “Refinancing
Indebtedness” and “Refinancing” and “Refinanced” have meanings correlative to the foregoing.
“Refinanced Debt” has the meaning set forth in the definition of “Refinancing Indebtedness”.
“Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower executed by each of (1) the Borrower, (2) the Administrative Agent and (3) each Additional Lender and Lender that agrees to provide any portion of the Other Loans or Other Commitments being
incurred or provided pursuant thereto, in accordance with Section 2.15.
“Refinancing
Indebtedness” means (1) Indebtedness incurred by the Borrower or any Restricted Subsidiary, (2) Disqualified Stock issued by the Borrower or any Restricted Subsidiary or (3) Preferred Stock issued by any Restricted
Subsidiary which, in each case, serves to extend, replace, refund, refinance, renew or defease (“Refinance”) any Indebtedness, Disqualified Stock or Preferred Stock, in each case of the foregoing clauses (1), (2) and
(3), including any Refinancing Indebtedness, so long as:
(a) the principal amount (or accreted value, if
applicable) of such new Indebtedness, the amount of such new Preferred Stock or the liquidation preference of such new Disqualified Stock does not exceed (i) the principal amount of (or accreted value, if applicable) Indebtedness, the amount of
Preferred Stock or the liquidation preference of Disqualified Stock being so extended, replaced, refunded, refinanced, renewed or defeased (such Indebtedness, Disqualified Stock or Preferred Stock, the “Refinanced Debt”),
plus (ii) any accrued and unpaid interest on, or any accrued and unpaid dividends on, such Refinanced Debt, plus (iii) the amount of any tender
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premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Refinanced Debt and any defeasance costs and any fees and expenses (including
original issue discount, upfront fees, underwriting, arrangement and similar fees) incurred in connection with the issuance of such new Indebtedness, Preferred Stock or Disqualified Stock or to Refinance such Refinanced Debt (such amounts in
clause (ii) and (iii) above the “Incremental Amounts”);
(b) such Refinancing
Indebtedness (other than in the case of (i) any Permitted Earlier Maturity Debt and (ii) the Refinancing of any Indebtedness assumed or acquired in connection with any Permitted Acquisition, investment or similar transaction so long as not
created in contemplation thereof), has a:
(A) Weighted Average Life to Maturity at the time such Refinancing Indebtedness
is incurred that is not less than the remaining Weighted Average Life to Maturity of the applicable Refinanced Debt (or, if earlier, not less than the remaining Weighted Average Life to Maturity of the Class of Loans with the longest Weighted
Average Life to Maturity); and
(B) final scheduled maturity date equal to or later than the final scheduled maturity date
of the Refinanced Debt (or, if earlier, the date that is ninety-one (91) days after the Latest Maturity Date of the Loans);
(c) to the extent such Refinancing Indebtedness Refinances (i) Indebtedness that is contractually subordinated in right of
payment to the Obligations (other than such Indebtedness assumed or acquired in an acquisition and not created in contemplation thereof), unless such Refinancing constitutes a Restricted Payment permitted by Section 7.05,
such Refinancing Indebtedness is subordinated to the Loans or the Guaranty thereof at least to the same extent as the applicable Refinanced Debt, (ii) Indebtedness that is unsecured or Junior Lien Debt, such Refinancing Indebtedness is
(A) unsecured or (B) secured by Liens that are subordinated to the Liens that secure the Loans or the Guaranty thereof, in each case at least to the same extent as the applicable Refinanced Debt or pursuant to an Intercreditor Agreement,
in each case, unless such Refinancing Indebtedness is secured by a Lien that is not so subordinated that is permitted by Section 7.01, or (iii) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must
be Disqualified Stock or Preferred Stock, respectively;
(d) such Refinancing Indebtedness shall not be guaranteed or
borrowed by any Person other than a Person that is so obligated in respect of the Refinanced Debt being Refinanced; and
(e) such Refinancing Indebtedness shall not be secured by any assets or property of the Borrower or any Restricted Subsidiary
that does not secure the Refinanced Debt being Refinanced unless such assets or property constitute Collateral (plus improvements, accessions, proceeds or dividends or distributions in respect thereof and after-acquired property) (other than
with respect to proceeds of such Refinancing Indebtedness that are subject to an escrow or other similar arrangement and any related deposit of cash or Cash Equivalents to cover interest and premium in respect of such Refinancing Indebtedness);
provided that Refinancing Indebtedness will not include (1) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Borrower
that is not a Guarantor that refinances Indebtedness or Disqualified Stock of the Borrower, (2) Indebtedness, Disqualified Stock or Preferred Stock of a Subsidiary of the Borrower that is not a Guarantor that refinances Indebtedness,
Disqualified Stock or Preferred Stock of a Guarantor, or (3) Indebtedness or Disqualified Stock of the Borrower or Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary that refinances Indebtedness, Disqualified Stock
or Preferred Stock of an Unrestricted Subsidiary;
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provided further that (1) clause (b) of this definition will not apply to any Refinancing
of any Indebtedness other than Indebtedness incurred under clause (dd) of Section 7.02(2) (including any successive Refinancings thereof incurred under clause (m) of
Section 7.02(2)) and any Junior Indebtedness (other than Junior Indebtedness assumed or acquired in an investment or acquisition and not created in contemplation thereof), Disqualified Stock and Preferred Stock and
(2) Refinancing Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be Refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause
(b) of this definition so long as (a) such credit facility includes customary “rollover” provisions and (b) assuming such credit facility were to be extended pursuant to such “rollover” provisions, such
extended credit facility would comply with clause (b) of this definition).
“Refunding Capital Stock” has
the meaning specified in Section 7.05(2)(b)(i).
“Register” has the meaning specified in
Section 10.07(3).
“Registered Equivalent Notes” means, with respect to any notes originally
issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantees) issued in a
dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulated Bank” has the meaning specified in Section 10.01(5)(c).
“REIT Status” means, with respect to any Person, (1) the qualification of such Person as a real estate investment
trust under Sections 856 through 860 of the Code and (2) the applicability to such Person and its shareholders of the method of taxation provided for in Section 857 et seq. of the Code.
“Rejection Notice” has the meaning specified in Section 2.05(2)(f).
“Related Business Assets” means assets (other than Cash Equivalents) used or useful in a Similar Business; provided
that any assets received by the Borrower or a Restricted Subsidiary in exchange for assets transferred by the Borrower or a Restricted Subsidiary will not be deemed to be Related Business Assets if they consist of securities of a Person, unless
upon receipt of the securities of such Person, such Person is or would become a Restricted Subsidiary.
“Related Indemnified
Person” of an Indemnitee means (1) any controlling Person or controlled Affiliate of such Indemnitee, (2) the respective directors, officers, partners, employees, advisors, other representatives or successors or permitted assigns
of such Indemnitee or any of its controlling Persons or controlled Affiliates and (3) the respective agents, trustees and other representatives of such Indemnitee or any of its controlling Persons or controlled Affiliates, in the case of this
clause (3), acting at the instructions of such Indemnitee, controlling Person or such controlled Affiliate; provided that each reference to a controlled Affiliate or controlling Person in this definition pertains to
a controlled Affiliate or controlling Person involved in the negotiation of this Agreement. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as used with respect to any Person, 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.
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“Related Person” means, with respect to any Person, (1) any
Affiliate of such Person, (2) the respective directors, officers, partners, employees, advisors, agents, trustees and other representatives of such Person or any of its Affiliates and (3) the successors and permitted assigns of such Person
or any of its Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of
New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying,
injection or leaching into the Environment.
“Released Subsidiary” has the meaning specified in the definition of
“Collateral and Guarantee Requirement”.
“Replaced Loans” has the meaning specified in
Section 10.01(2).
“Replacement Amendment” has the meaning specified in
Section 10.01(2).
“Replacement Loans” has the meaning specified in
Section 10.01(2).
“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” has the meaning specified in Section 2.18(1).
“Request for Credit Extension” means (1) with respect to a Borrowing, conversion or continuation of Term Loans or
Revolving Loans, a Committed Loan Notice, (2) with respect to an L/C Credit Extension, an L/C Application and (3) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Facility Lenders” means, as of any date of determination, with respect to one or more Facilities, Lenders having
more than 50.0% of the sum of (1) the Total Outstandings under such Facility or Facilities (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans, as applicable,
under such Facility or Facilities being deemed “held” by such Lender for purposes of this definition) and (2) the aggregate unused Commitments under such Facility or Facilities; provided that the unused Commitments of, and
the portion of the Total Outstandings under such Facility or Facilities held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders; provided further that the
unused Term Commitment and unused Revolving Commitment of, and the portion of the Total Outstandings held or deemed held by, (x) any Affiliated Lender and (y) any Disqualified Institution that purports to become a Lender hereunder without
the Borrower’s written consent shall in each case be excluded for purposes of making a determination of Required Facility Lenders unless, in the case of any Affiliated Lender, the action in question affects such Affiliated Lender in a
disproportionately adverse manner than its effect on the other Lenders. Notwithstanding the foregoing, to the extent there are two (2) or more Non-Defaulting Lenders that are not Affiliates in a Facility,
“Required Facility Lenders” as to such Facility shall be comprised of at least two (2) Non-Defaulting Lenders that are not Affiliates or Approved Funds of one another.
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“Required Lenders” means, as of any date of determination, Lenders having
more than 50% of the sum of the (1) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition), (2) aggregate unused Term Commitments and (3) aggregate unused Revolving Commitments; provided that the unused Term Commitment and unused Revolving Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided further that the unused Term Commitment and unused Revolving Commitment of, and the portion of the
Total Outstandings held or deemed held by, (a) any Affiliated Lender and (b) any Disqualified Institution that purports to become a Lender hereunder without the Borrower’s written consent shall in each case be excluded for purposes
of making a determination of Required Lenders unless, in the case of any Affiliated Lender, the action in question affects such Affiliated Lender in a disproportionately adverse manner than its effect on the other Lenders. Notwithstanding the
foregoing, to the extent there are two (2) or more Non-Defaulting Lenders that are not Affiliates, “Required Lenders” shall be comprised of at least two
(2) Non-Defaulting Lenders that are not Affiliates or Approved Funds of one another.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution
Authority.
“Responsible Officer” means, with respect to a Person, the chief executive officer, chief operating
officer, president, executive vice president, senior vice president, chief financial officer, chief accounting officer, controller, treasurer or assistant treasurer or other similar officer or Person performing similar functions, of such Person and,
solely for purposes of notices given pursuant to Article II, any other officer or employee 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. With respect to any document delivered by a Loan Party on the Closing Date, Responsible Officer includes any
secretary or assistant secretary of such Loan Party. 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 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. Unless otherwise specified, all references herein to a “Responsible Officer” shall refer to a
Responsible Officer of the Borrower.
“Restricted Earlier Maturity Debt” has the meaning specified in the definition of
“Permitted Earlier Maturity Debt”.
“Restricted Investment” means any Investment other than any Permitted
Investment(s).
“Restricted Payments” has the meaning specified in Section 7.05.
“Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the Borrower (including any Foreign
Subsidiary) that is not then an Unrestricted Subsidiary; provided that notwithstanding the foregoing, in no event will any Securitization Subsidiary be considered a Restricted Subsidiary for purposes of
Section 8.01(5), (6) or (7); provided further that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary will be included in the definition of
“Restricted Subsidiary”. Wherever the term “Restricted Subsidiary” is used herein with respect to any Subsidiary of a referenced Person that is not the Borrower, then it will be construed to mean a Person that would be a
Restricted Subsidiary of the Borrower on a pro forma basis following consummation of one or a series of related transactions involving such referenced Person and the Borrower (unless such transaction would include a designation of a
Subsidiary of such Person as an Unrestricted Subsidiary on a pro forma basis in accordance with this Agreement).
“Retained Asset Sale Proceeds” has the meaning specified in Section 2.05(2)(b)(i).
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“Revolving Borrowing” means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period, made by each of the Revolving Lenders pursuant to Section 2.01(2).
“Revolving Commitment” means, as to each Revolving Lender, its obligation to (1) make Revolving Loans to the Borrower
pursuant to Section 2.01(2) and (2) purchase participations in L/C Obligations in respect of Letters of Credit and purchase participations in Swing Line Loans in an aggregate principal amount at any one time
outstanding equal to the amount specified opposite such Lender’s name on Schedule 2.01 under the caption “Revolving 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 Commitments of all Revolving Lenders as of the Closing Date is $100,000,000, as such amount may be adjusted from time to time in
accordance with the terms of this Agreement.
“Revolving Commitment Increase” has the meaning specified in
Section 2.14(1).
“Revolving Exposure” means, as to each Revolving Lender, the sum of the
amount of the Outstanding Amount of such Revolving Lender’s Revolving Loans and its Applicable Percentage of the amount of the L/C Obligations and Swing Line Obligations at such time.
“Revolving Extension Request” has the meaning provided in Section 2.16(2).
“Revolving Extension Series” has the meaning provided in Section 2.16(2).
“Revolving Facility” means, at any time, the aggregate amount of the Revolving Commitments at such time; provided that for
the avoidance of doubt, the Revolving Facility shall include the Extended Revolving Commitments.
“Revolving Lender”
means, at any time, any Lender that has a Revolving Commitment at such time or, if Revolving Commitments have terminated, Revolving Exposure.
“Revolving Loan” has the meaning specified in Section 2.01(2) and includes Revolving Loans under
the Closing Date Revolving Facility, Incremental Revolving Loans, Other Revolving Loans and Loans made pursuant to Extended Revolving Commitments.
“Revolving Note” means a promissory note of the Borrower payable to any Revolving Lender or its registered assigns, in
substantially the form of Exhibit B-2 hereto, evidencing the aggregate Indebtedness of the Borrower to such Revolving Lender resulting from the Revolving Loans made by such Revolving Lender.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Sale-Leaseback Transaction” means any arrangement providing for the leasing by the Borrower or any Restricted
Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to a third Person in contemplation of such leasing.
“Same Day Funds” means disbursements and payments in immediately available funds.
“Sanctions” has the meaning specified in Section 5.17.
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“SEC” means the U.S. Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
“Secured Cash Management Agreement” means any
Cash Management Agreement that is (1) entered into by and between the Borrower or any Restricted Subsidiary and a Cash Management Bank and (2) designated in writing by the Borrower to the Administrative Agent as a “Secured Cash
Management Agreement”.
“Secured Hedge Agreement” means any Hedge Agreement with respect to Hedging Obligations
permitted under Section 7.02 that is (1) entered into by and between any Loan Party or Restricted Subsidiary and any Hedge Bank and (2) designated in writing by the Borrower to the Administrative Agent as a
“Secured Hedge Agreement”.
“Secured Indebtedness” means any Indebtedness of the Borrower or any Restricted
Subsidiary secured by a Lien.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent,
the Lenders, each Issuing Bank, each Hedge Bank, each Cash Management Bank, each Specified Letter of Credit Issuer, each Supplemental Administrative Agent and each co-agent or
sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.01(2) or 9.07. For the avoidance of doubt, unless otherwise agreed to by the Borrower
and any applicable Hedge Bank, Cash Management Bank or Specified Letter of Credit Issuer, such Hedge Bank, Cash Management Bank or Specified Letter of Credit Issuer shall be a Secured Party only to the extent that, and only for so long as, the
Obligations (other than the obligations of the Borrower or any Subsidiary under any Secured Hedge Agreement, Secured Cash Management Agreement and Specified Letter of Credit and any related agreements) are secured and guaranteed pursuant to the
Collateral Documents and the Guaranty.
“Securities Act” means the Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
“Securitization Assets” means the accounts receivable, royalty or
other revenue streams and other rights to payment and other assets related thereto subject to a Qualified Securitization Facility and the proceeds thereof.
“Securitization Facility” means any transaction or series of transactions that may be entered into by the Borrower or any
Restricted Subsidiary pursuant to which the Borrower or any such Restricted Subsidiary may sell, convey or otherwise transfer, or may grant a security interest in, Securitization Assets to either (1) a Person that is not the Borrower or a
Restricted Subsidiary (in the case of a transfer by a Securitization Subsidiary) or (2) a Securitization Subsidiary (in the case of a transfer by the Borrower or any of its Subsidiaries) that in turn sells such Securitization Assets to a Person
that is not the Borrower or a Restricted Subsidiary, or may grant a security interest in any Securitization Assets of the Borrower or any of its Subsidiaries.
“Securitization Fees” means distributions or payments made directly or by means of discounts with respect to any
participation interest issued or sold in connection with, and other fees and expenses (including reasonable and documented (in reasonable detail) fees and expenses of legal counsel) paid to a Person that is not a Securitization Subsidiary in
connection with, any Qualified Securitization Facility.
“Securitization Repurchase Obligation” means any obligation of
a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a Standard Securitization Undertaking, 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.
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“Securitization Subsidiary” means a wholly owned Subsidiary of the
Borrower (or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which the Borrower or any Subsidiary of the Borrower makes an Investment and to which the Borrower or any Subsidiary of the Borrower transfers
Securitization Assets and related assets) that engages in no activities other than in connection with the financing of Securitization Assets of the Borrower or its Subsidiaries, all proceeds thereof and all rights (contingent and other), collateral
and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the board of directors of the Borrower or such other Person (as provided below) as a Securitization Subsidiary and
(a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary (excluding guarantees of
obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates the Borrower or any other Subsidiary of the Borrower, other than another Securitization
Subsidiary, in any way other than pursuant to Standard Securitization Undertakings or (iii) subjects any property or asset of the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (b) with which none of the Borrower or any other Subsidiary of the Borrower, other than another Securitization
Subsidiary, has any material contract, agreement, arrangement or understanding other than on terms which the Borrower reasonably believes to be no less favorable to the Borrower or such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower and (c) to which none of the Borrower or any other Subsidiary of the Borrower, other than another Securitization Subsidiary, has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the board of directors of the Borrower or such other Person shall be evidenced to the Administrative Agent by delivery to the
Administrative Agent of a certified copy of the resolution of the board of directors of the Borrower or such other Person giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied
with the foregoing conditions.
“Security Agreement” means, collectively, the Pledge and Security Agreement executed by
the Loan Parties and the Collateral Agent, substantially in the form of Exhibit F, together with supplements or joinders thereto executed and delivered pursuant to Section 6.11.
“Senior Debt to Total Assets Ratio” means, at any date, the percentage obtained by dividing (1) Senior Indebtedness as
of the last day of the most recently ended Test Period by (2) Total Assets as of the last day of the most recently ended Test Period.
“Senior Indebtedness” means, at any date of determination, subject to the definition of “Designated Revolving
Commitments”, the sum of (1) Total Indebtedness as of the last day of the most recently ended Test Period minus (2) the aggregate principal amount of Indebtedness included in calculating Total Indebtedness consisting of
Indebtedness of Loan Parties that is unsecured or secured only by a Lien on the Collateral ranking junior to the Liens securing the Closing Date Term Facility.
“Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in
Article 1, Rule 1-02 of Regulation S-X of the SEC, as such regulation is in effect on the Closing Date.
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“Similar Business” means (1) any business conducted or proposed to
be conducted by the Borrower or any Restricted Subsidiary on the Closing Date or (2) any business or other activities that are reasonably similar, ancillary, incidental, complementary or related to (including
non-core incidental businesses acquired in connection with any Permitted Investment), or a reasonable extension, development or expansion of, the businesses that the Borrower and its Restricted Subsidiaries
conduct or propose to conduct on the Closing Date.
“SOFR” means a rate equal to the secured overnight financing rate
as administered by the SOFR Administrator and set forth on the SOFR Administrator’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 Administrator” means the Federal Reserve Bank of New York (or a successor administrator of
the secured overnight financing rate).
“Solicited Discount Proration” has the meaning specified in
Section 2.05(1)(e)(D)(III).
“Solicited Discounted Prepayment Amount” has the meaning
specified in Section 2.05(1)(e)(D)(I).
“Solicited Discounted Prepayment Notice” means a
written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to Section 2.05(1)(e)(D) substantially in the form of Exhibit L or any other form acceptable to the Borrower
and the Administrative Agent.
“Solicited Discounted Prepayment Offer” means the written offer by each Lender,
substantially in the form of Exhibit O or any other form acceptable to the Borrower and the Administrative Agent, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Response Date” has the meaning specified in
Section 2.05(1)(e)(D)(I).
“Solvent” and “Solvency” mean, with respect to
any Person on any date of determination, that on such date:
(1) the fair value (on a going concern basis) of the assets of
such Person exceeds its debts and liabilities, subordinated, contingent or otherwise,
(2) the present fair saleable value
(on a going concern basis) of the property of such Person is greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured,
(3) such Person is able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such liabilities become absolute and matured, and
(4) such Person is not engaged in, and is not about to
engage in, business for which it has unreasonably small capital.
The amount of any contingent liability at any time shall be computed as the amount that
would reasonably be expected to become an actual and matured liability.
“SPC” has the meaning specified in
Section 10.07(7).
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“Specified Discount” has the meaning specified in
Section 2.05(1)(e)(B)(I).
“Specified Discount Prepayment Amount” has the meaning specified
in Section 2.05(1)(e)(B)(I).
“Specified Discount Prepayment Notice” means a written notice
of the Borrower’s Offer of Specified Discount Prepayment made pursuant to Section 2.05(1)(e)(B) substantially in the form of Exhibit N.
“Specified Discount Prepayment Response” means the written response by each Lender, substantially in the form of Exhibit
P, to a Specified Discount Prepayment Notice.
“Specified Discount Prepayment Response Date” has the meaning
specified in Section 2.05(1)(e)(B)(I).
“Specified Discount Proration” has the meaning
specified in Section 2.05(1)(e)(B)(III).
“Specified Indebtedness” has the meaning specified
in Section 10.01(4).
“Specified Letter of Credit” means any letter of credit not issued
under the Revolving Facility, any Incremental Revolving Facility or any Additional Letter of Credit Facility that is (1) issued by a Specified Letter of Credit Issuer and (2) designated in writing by the Borrower to the Administrative
Agent as a “Specified Letter of Credit”; provided that no letter of credit may be designated as a Specified Letter of Credit if, at the time of and after giving effect to such designation, the L/C Sublimit Availability would be
less than zero.
“Specified Letter of Credit Issuer” means (1) any Person that is an Agent, a Lender or an
Affiliate of an Agent or Lender at the time it issued a Specified Letter of Credit, whether or not such Person subsequently ceases to be an Agent, a Lender or an Affiliate of an Agent or Lender and (2) to the extent such person is reasonably
satisfactory to the Administrative Agent, any Person from time to time designated in writing as a “Specified Letter of Credit Issuer” by the Borrower to the Administrative Agent.
“Specified Letter of Credit Obligations” means, as at any date of determination, the sum of (1) the aggregate amount
available to be drawn under each outstanding Specified Letter of Credit plus (2) the aggregate outstanding amount of all extensions of credit resulting from drawings under any Specified Letter of Credit that have not been reimbursed in
accordance with the terms of the applicable Specified Letter of Credit at such time.
“Specified Loan Party Acquisition
Threshold” has the meaning specified in the definition of “Permitted Investments”.
“Specified
Representations” means those representations and warranties made in Sections 5.01(1) (with respect to corporate or other organizational existence of the Loan Parties only), 5.01(2)(b), 5.02(1), 5.02(2)(a),
5.04, 5.13, 5.16, the last sentence of Section 5.17 (solely that the use of proceeds of the applicable Loans will not violate the FCPA, the USA PATRIOT Act and Sanctions), and
Section 5.18.
“Specified Transaction” means:
(1) solely for the purposes of determining the applicable cash balance, any contribution of capital, including as a result of
an Equity Offering, to the Borrower, in each case, in connection with an acquisition or Investment,
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(2) any designation of operations or assets of the Borrower or a Restricted
Subsidiary as discontinued operations (as defined under GAAP) (provided that operations or assets of the Borrower or a Restricted Subsidiary that are held for sale or are subject to an agreement to dispose of such operations or assets may, at
the Borrower’s election (in its sole discretion), be designated as discontinued operations under this clause (2) only when and to the extent such operations are actually disposed of),
(3) any Permitted Acquisition, investment or other similar transaction, in each case, that results (or will result) in a Person
becoming a Restricted Subsidiary,
(4) any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted
Subsidiary in compliance with this Agreement,
(5) any purchase, acquisition or contribution of a business of any Person or
of assets constituting a business unit, line of business or division of any Person,
(6) any Asset Sale (without regard to
any de minimis thresholds set forth therein) or other disposition (a) that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower or (b) of a business, business unit, line of business or division of the Borrower or a
Restricted Subsidiary, in each case whether by merger, amalgamation, consolidation or otherwise,
(7) any operational
changes identified by the Borrower that have been made by the Borrower or any Restricted Subsidiary during the Test Period,
(8) any borrowing of (a) Incremental Loans, (b) Permitted Incremental Equivalent Debt (or establishment of
Incremental Commitments) or (c) other Indebtedness that requires a financial ratio or test to be calculated on a pro forma basis hereunder,
(9) any Restricted Payment or other transaction that by the terms of this Agreement requires a financial ratio or test to be
calculated on a pro forma basis, or
(10) any other event that by the terms of the Loan Documents requires pro
forma compliance with a test or covenant or requires such test or covenant to be calculated on a pro forma basis.
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the
Borrower or any Subsidiary of the Borrower that are customary in a Securitization Facility.
“Sterling” means the
lawful currency of the United Kingdom.
“Submitted Amount” has the meaning specified in
Section 2.05(1)(e)(C)(I).
“Submitted Discount” has the meaning specified in
Section 2.05(1)(e)(C)(I).
“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 Person) of which more than 50.0% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, members of management or trustees thereof is at the
time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, and
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(2) any partnership, joint venture, limited liability company or similar
Person of which:
(a) more than 50.0% of the capital accounts, distribution rights, total equity and voting interests or
general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general,
special or limited partnership or otherwise, and
(b) such Person or any Restricted Subsidiary of such Person is a
controlling general partner or otherwise controls such Person.
Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor” means any Guarantor other than the Borrower.
“Successor Borrower” has the meaning specified in Section 7.03(4).
“Supplemental Administrative Agent” and “Supplemental Administrative Agents” have the meanings specified
in Section 9.14(1).
“Support Agreement” means guarantees, reimbursement or similar support
agreements of the Administrative Agent to induce an Issuing Bank to issue or increase the amount of or extend the expiry date of a Letter of Credit; provided that, notwithstanding anything to the contrary in this Agreement or any other Loan
Documents, the Administrative Agent shall not be obligated to issue any Support Agreement unless it agrees to do so in its sole and absolute discretion.
“Supported Letter of Credit” means a Letter of Credit issued by an Issuing Bank in reliance on one or more Support
Agreements.
“Supported QFC” has the meaning specified in Section 10.26.
“Swap Obligation” has the meaning specified in the definition of “Excluded Swap Obligation”.
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Commitment” means, as to each Swing Line Lender, its obligation to make Swing Line Loans to the Borrower
pursuant to Section 2.04 in an aggregate principal amount at any one time outstanding equal to the amount specified opposite such Lender’s name on Schedule 2.04 under the caption “Swing Line
Commitment”, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Swing Line Commitments of all Swing Line Lenders shall not at any time exceed the Swing Line Sublimit.
“Swing Line Facility” means the swing line facility made available by the Swing Line Lenders pursuant to
Section 2.04.
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“Swing Line Lender” means (a) Wells Fargo Bank, N.A. (or any of its
designated branch offices or Affiliates) and (b) any other Lender that becomes a Swing Line Lender in accordance with Section 2.04(8), or any successor Swing Line Lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(1).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(2),
which, if in writing, shall be substantially in the form of Exhibit A-2, or such other form as approved by the Swing Line Lenders and the Borrower (including any form on an electronic platform or
electronic transmission system as shall be approved by the Swing Line Lenders and the Borrower), appropriately completed and signed by a Responsible Officer of the Borrower.
“Swing Line Note” means a promissory note of the Borrower payable to any Swing Line Lender or its registered assigns, in
substantially the form of Exhibit B-3, evidencing the aggregate Indebtedness of the Borrower to such Swing Line Lender resulting from the Swing Line Loans made by such Swing Line Lender.
“Swing Line Obligations” means, as at any date of determination, the aggregate Outstanding Amount of all Swing Line Loans
outstanding.
“Swing Line Sublimit” means an amount equal to the lesser of (1) $25,000,000, as adjusted from time to
time in accordance with Section 2.14 and (2) the aggregate amount of the Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Commitments.
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding (including
backup withholding) of any nature and whatever called, imposed by any Governmental Authority, including any interest, additions to tax and penalties applicable thereto.
“Tax Group” has the meaning specified in Section 7.05(2)(n)(ii).
“Tax Indemnitee” has the meaning specified in Section 3.01(5).
“Term Borrowing” means a Borrowing of any Term Loans.
“Term Commitment” means, as to each Term Lender, its obligation to make a Term Loan to the Borrower hereunder, expressed as
an amount representing the maximum principal amount of the Term Loan to be made by such Term Lender under this Agreement, as such commitment may be (1) reduced from time to time pursuant to this Agreement and (2) reduced or increased from
time to time pursuant to (a) assignments by or to such Term Lender pursuant to an Assignment and Assumption, (b) an Incremental Amendment, (c) a Refinancing Amendment, (d) an Extension Amendment or (e) an amendment in
respect of Replacement Loans. The initial amount of each Term Lender’s Term Commitment is specified on Schedule 2.01 under the caption “Closing Date Term Loan Commitment” or, otherwise, in the Assignment and Assumption (or
Affiliated Lender Assignment and Assumption), Incremental Amendment, Refinancing Amendment, Extension Amendment or amendment in respect of Replacement Loans pursuant to which such Lender shall have assumed its Commitment, as the case may be.
“Term Facility” means any Facility consisting of Term Loans of a single Class and/or Term Commitments with respect to
such Class of Term Loans.
“Term Lender” means, at any time, any Lender that has a Term Commitment or a Term Loan
at such time.
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“Term Loan” means any Closing Date Term Loan, Incremental Term Loan,
Other Term Loan, Extended Term Loan or Replacement Loan, as the context may require.
“Term Loan Extension Request” has
the meaning provided in Section 2.16(1).
“Term Loan Extension Series” has the meaning
provided in Section 2.16(1).
“Term Loan Increase” has the meaning specified in
Section 2.14(1).
“Term Note” means a promissory note of the Borrower payable to any Term
Lender or its registered assigns, in substantially the form of Exhibit B-1 hereto, evidencing the aggregate Indebtedness of the Borrower to such Term Lender resulting from the Term Loans made by such
Term Lender.
“Term SOFR” means:
(1) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable
Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term
SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator
and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government
Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(2) for any calculation with respect to
an Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such
day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not
been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR
Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day
is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day;
provided that in no
event shall Term SOFR for Closing Date Term Loans and Revolving Loans under the Closing Date Revolving Facility that bear interest at a rate based on clauses (1) and (2) of this definition be less than 0.00% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the Term SOFR Reference Rate
(or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion and with the consent of the Borrower (such consent not to be unreasonably withheld)).
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“Term SOFR Loan” means a Loan that bears interest at a rate based
on Term SOFR, other than pursuant to clause (3) of the definition of “Base Rate”.
“Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR.
“Termination Conditions” means,
collectively, (1) the payment in full in cash of the Obligations (other than (a) contingent indemnification obligations not then due and (b) Obligations under Secured Hedge Agreements, Secured Cash Management Agreements and Specified
Letters of Credit) and (2) the termination of the Commitments and the termination or expiration of all Letters of Credit under this Agreement (unless the Outstanding Amount of the L/C Obligations related thereto has been Cash Collateralized on
terms reasonably acceptable to the applicable Issuing Bank, backstopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank or deemed reissued under another agreement reasonably acceptable to the applicable Issuing Bank).
“Test Period” in effect at any time means (1) for purposes of (a) the definition of “Applicable
Rate”, (b) Section 2.05(2)(a) and Section 2.05(2)(b) and (c) the Financial Covenants (other than for the purpose of determining pro forma compliance with the Financial Covenants
in connection with any Basket), the most recent period of four consecutive fiscal quarters of the Borrower ended on or prior to such time (taken as one accounting period) in respect of which, subject to Section 1.07(1),
financial statements for each quarter or fiscal year in such period have been or are required to be delivered pursuant to Section 6.01(1) or (2) (in the case of Section 6.01(2), for the
avoidance of doubt, other than with respect to the final fiscal quarter of any fiscal year), as applicable and (2) for all other purposes in this Agreement, at the election of the Borrower, either (a) the most recent period of four
consecutive fiscal quarters of the Borrower ended on or prior to such time (taken as one accounting period) in respect of which, subject to Section 1.07(1), financial statements for each quarter or fiscal year in such
period have been or are required to be delivered pursuant to Section 6.01(1) or (2) (in the case of Section 6.01(2), for the avoidance of doubt, other than with respect to the final fiscal
quarter of any fiscal year), as applicable, or (b) the most recent period of four consecutive fiscal quarters of the Borrower ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each such
quarter or fiscal year in such period are internally available (as determined in good faith by the Borrower); provided that, with respect to this clause (2), at the option of the Borrower, with respect to any applicable determination,
the “Test Period” may be deemed to be the most recent trailing twelve month period of the Borrower ended on or prior to such time (taken as one accounting period) in respect of which financial statements for such trailing twelve month
period are internally available (it being understood that for purposes of determining pro forma compliance with the Financial Covenants in connection with any Basket, if no Test Period with an applicable level cited in a Financial Covenant
has passed, the applicable level shall be the level for the first Test Period cited in such Financial Covenant with an indicated level).
“Threshold Amount” means the greater of (1) $22,500,000 and (2) 0.50% of Total Assets for the most recently ended Test
Period (calculated on a pro forma basis).
“Total Assets” shall mean, on any date of determination, (1) an
amount equal to the aggregate book value of all assets owned by the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (excluding amounts attributable to investments in Unrestricted Subsidiaries), less
(2) (a) all amounts owing to Borrower and its Restricted Subsidiaries from any Affiliate thereof, or from officers, employees, partners, members, directors, shareholders of other persons similarly affiliated with Borrower or any Affiliate
thereof, (b) all intangible assets and (c) prepaid taxes and expenses, in each case, to the extent such amounts would otherwise be included in Total Assets, plus (3) (a) the aggregate amount of accumulated depreciation and
amortization related to properties and (b) the aggregate credit loss allowance related to “current expected credit loss” model prescribed by ASC 326, all on or as of such date and determined in accordance with GAAP.
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“Total Debt to Total Assets Ratio” means, at any date, the percentage
obtained by dividing (1) Total Indebtedness as of the last day of the most recently ended Test Period by (2) Total Assets as of the last day of the most recently ended Test Period.
“Total Indebtedness” means, at any date of determination, all Indebtedness of the Borrower and the Restricted Subsidiaries
outstanding as of the last day of the most recently ended Test Period, in an amount that would be reflected on a balance sheet on a consolidated basis in accordance with GAAP.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and L/C Obligations.
“TPG BD” means TPG Capital BD, LLC.
“Traded Securities” means any debt or equity securities issued pursuant to a public offering or Rule 144A offering.
“Transformative Transaction” shall mean any merger, acquisition, disposition, dissolution, consolidation or investment
(or series of related transactions) by the Borrower or any Restricted Subsidiary that (1) either (a) is not permitted by the terms hereunder immediately prior to the consummation of such acquisition or investment or (b) if permitted by the
terms hereunder immediately prior to the consummation of such transaction, would not provide the Borrower and its subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations
following such consummation as determined by the Borrower acting in good faith or (2) is for total consideration in excess of $100,000,000.
“Transaction Expenses” means any fees, expenses, costs or charges incurred or paid by the Manager, any Parent Company, the
Borrower or any Restricted Subsidiary in connection with the Transactions, including any expenses in connection with hedging transactions, payments to officers, employees and directors as change of control payments, severance payments, special or
retention bonuses and charges for repurchase or rollover of, or modifications to, stock options or restricted stock.
“Transactions” means, collectively, (1) the execution, delivery and performance by the Loan Parties of the Loan
Documents to which they are a party and the Borrowing of Loans hereunder on the Closing Date and (2) the payment of the Transaction Expenses.
“Treasury Capital Stock” has the meaning specified in Section 7.05(2)(b)(i).
“TRT Holdco” means TPG RE Finance Trust Holdco, LLC, a Delaware limited liability company.
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Term SOFR Loan.
“U.S. Government Securities Business Days” means any day except for (1) a Saturday, (2) a Sunday or (3) a
day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Lender” means any Lender that is not a Foreign Lender.
“U.S. Special Resolution Regimes” has the meaning specified in Section 10.26.
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“UCP” means, with respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits, International Chamber of Commerce 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.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement
Adjustment.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code or any successor
provision thereof as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code or any successor provision thereof (or similar code or statute) of another jurisdiction, to the extent it may be required to
apply to the perfection or priority of any Lien on or otherwise with regard to any item or items of Collateral.
“United
States” and “U.S”. mean the United States of America.
“United States Tax Compliance
Certificate” means a certificate substantially in the form of Exhibit H-1, H-2, H-3 or H-4, as applicable.
“Unreimbursed Amount” has the meaning specified in
Section 2.03(3)(a).
“Unrestricted Subsidiary” means:
(1) any Subsidiary of the Borrower which at the time of determination is an Unrestricted Subsidiary (as designated by the
Borrower, as provided below); and
(2) any Subsidiary of an Unrestricted Subsidiary.
So long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may designate (this paragraph,
the “Unrestricted Subsidiary Designation Conditions”):
(a) any Subsidiary of the Borrower (including
any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary; provided that no Unrestricted Subsidiary shall be designated if, at the time of designation, it directly or indirectly owns any
Equity Interests in any Restricted Subsidiary (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary simultaneously with the aforementioned designation in accordance with the terms hereof) or holds any Indebtedness of or
any Lien on any property of the Borrower or its Restricted Subsidiaries (other than solely any Subsidiary of the Subsidiary to be so designated); provided further that (i) such designation shall be deemed an Investment, (ii) each of
(A) the Subsidiary to be so designated and (B) its Subsidiaries, is not, at the time of designation, liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Borrower or any Restricted
Subsidiary (other than Equity Interests in an Unrestricted Subsidiary), (iii) neither the Borrower nor any of its Restricted Subsidiaries may transfer legal title
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to, or license on an exclusive basis (excluding licenses limited by territory or field of use), any Material Intellectual Property to any Unrestricted Subsidiary and (iv) no Subsidiary may
be designated as an Unrestricted Subsidiary if at the time of such designation such Subsidiary owns or licenses on an exclusive basis (excluding licenses limited by territory or field of use) any Material Intellectual Property; and
(b) any Unrestricted Subsidiary to be a Restricted Subsidiary.
Any such designation by the Borrower will be notified by the Borrower to the Administrative Agent (in the case of clause
(a) above, by promptly filing with the Administrative Agent an Officer’s Certificate certifying that such designation complied with clause (a) above). The designation of any Unrestricted Subsidiary as a Restricted
Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness and Liens of such Subsidiary existing at such time.
“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 Public Law No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in
the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any
Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing:
(1) the sum of the products of the number of years (calculated to the nearest
one-twenty-fifth) 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 “Applicable Indebtedness”),
the effects of any amortization or prepayments made on such Applicable Indebtedness prior to the date of such determination will be disregarded.
“wholly owned” means, with respect to any Subsidiary of any Person, a Subsidiary of such Person one hundred percent (100%)
of the outstanding Equity Interests of which (other than (1) directors’ qualifying shares and (2) shares of Capital Stock of Foreign Subsidiaries issued to foreign nationals as required by applicable Law) is at the time owned by such
Person or by such Person and/or one or more wholly owned Subsidiaries of such Person.
“Withdrawal Liability” means the
liability to 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.
“Withholding U.S. Branch” means a U.S. branch of a non-U.S. bank treated as a U.S.
person for purposes of Treasury Regulations Section 1.1441-1 and described in Treasury Regulations Section 1.1441-1(b)(2)(iv) that agrees, on IRS Form W-8IMY or such other form prescribed by the Treasury or the IRS, to accept responsibility for all U.S. federal income tax withholding and information reporting with respect to payments made to the Administrative
Agent for the account of Lenders by or on behalf of any Loan Party under the Loan Documents.
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“Write-Down and Conversion Powers” means, (1) 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 (2) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
“Yen” means the lawful currency of Japan.
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:
(1) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(2) 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.
(3) References in this Agreement to an Exhibit, Schedule, Article, Section, Annex, clause or subclause refer (a) to the appropriate
Exhibit or Schedule to, or Article, Section, clause or subclause in, this Agreement or (b) to the extent such references are not present in this Agreement, to the Loan Document in which such reference appears, in each case as such Exhibit,
Schedule, Article, Section, Annex, clause or subclause may be amended or supplemented from time to time.
(4) The term
“including” is by way of example and not limitation.
(5) 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.
(6) 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”.
(7) 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.
(8) The word “or” is not intended to be exclusive unless
expressly indicated otherwise.
(9) With respect to any Default or Event of Default, the words “exists”, “is
continuing” or similar expressions with respect thereto shall mean that the Default or Event of Default has occurred and has not yet been cured or waived. If any Default or Event of Default occurs due to (a) the failure by any Loan Party
or other Restricted Subsidiary to take any action by a specified time, such Default or Event of Default shall be deemed to have been cured at the time, if any, that the applicable Loan Party or other Restricted Subsidiary takes such action or
(b) the taking of any action by any Loan Party or other Restricted
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Subsidiary that is not then permitted by the terms of this Agreement or any other Loan Document, such
Default or Event of Default shall be deemed to be cured on the earlier to occur of (i) the date on which such action would be permitted at such time to be taken under this Agreement and the other Loan Documents and (ii) the date on which
such action is unwound or otherwise modified to the extent necessary for such revised action to be permitted at such time by this Agreement and the other Loan Documents. If any Default or Event of Default occurs that is subsequently cured (a
“Cured Default”), any other Default or Event of Default resulting from the making or deemed making of any representation or warranty by any Loan Party or the taking of any action, or any failure to act, by any Loan Party or any
Subsidiary of any Loan Party, in each case which subsequent Default or Event of Default would not have arisen had the Cured Default not occurred, shall be deemed to be cured automatically upon, and simultaneous with, the cure of the Cured Default.
Notwithstanding anything to the contrary in this Section 1.02(9), (a) no Event of Default pursuant to clause (6) of Section 8.01 with respect to the Borrower may be cured pursuant to this
Section 1.02(9), (b) no Financial Covenant Event of Default may be cured pursuant to this Section 1.02(9) (but, for the avoidance of doubt, a Financial Covenant Event of Default may be cured pursuant to
Section 8.04) and (c) any other Event of Default (the “Initial Default”) may not be cured pursuant to this Section 1.02(9) (i) if the taking of any action by any Loan Party or Subsidiary of a Loan
Party that is not permitted during, and as a result of, the continuance of such Initial Default directly results in the cure of such Initial Default and the applicable Loan Party or Subsidiary had actual knowledge at the time of taking any such
action that the Initial Default had occurred and was continuing, (ii) in the case of an Event of Default under Section 8.01(9) or (10) that directly results in material impairment of the rights and remedies of the
Lenders, Collateral Agent and Administrative Agent under the Loan Documents and that is incapable of being cured, or (iii) in the case of an Event of Default under Section 8.01(3) arising due to the failure to perform or observe
Section 6.07 that directly results in a material adverse effect on the ability of the Borrower and the other Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document to which the Borrower or
any of the other Loan Parties is a party.
(10) Any Default or Event of Default shall be deemed to no longer “exist” or be
“continuing” and shall be deemed automatically cured if the initial action, inaction, transaction, event, fact or circumstance giving rise to such Default or Event of Default has been reported pursuant to a press release, a filing with
the SEC or a posting to the Platform or otherwise set forth in any notice, certificate or report delivered to the Administrative Agent or the Lenders and twenty (24) months shall have passed from the date of such press release, filing, posting,
notice, certificate or report without any acceleration or other enforcement action being taken by the Administrative Agent or the requisite Lenders hereunder with respect to such Default or Event of Default, and neither the Administrative Agent nor
any Lender may undertake or consent to any action, or direct or require any Person take or consent to any action, in respect of any such Default or Event of Default after the conclusion of such twenty (24)-month period.
(11) For purposes hereof, 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.
(12) Each reference in the Loan Documents with respect to the priority of Liens shall be determined without regard to the control of
applicable remedies, in each case, unless otherwise expressly stated in the Loan Documents in respect thereof.
(13) Any terms used in
this Agreement that are defined in the UCC shall be construed and defined as set forth in the UCC unless otherwise defined herein; provided that to the extent that the UCC is used to define any term herein and such term is defined differently
in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern.
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SECTION 1.03 Accounting Terms; Accounting Periods
(1) 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, except as otherwise specifically prescribed herein, but without giving effect to any
election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other financial accounting standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any of its
Restricted Subsidiaries at “fair value”.
(2) Notwithstanding the foregoing, if at any time any change occurs after the
Closing Date in GAAP or IFRS, as applicable, or in the application thereof that, in each case, would affect the computation of any financial ratio or financial requirement, or compliance with any covenant, set forth in any Loan Document, and the
Borrower shall so request (regardless of whether any such request is given before or after such change), the Administrative Agent, the Lenders and the Borrower will negotiate in good faith to amend (subject to the approval of the Required Lenders)
such ratio, requirement or covenant to preserve the original intent thereof in light of such change in GAAP or IFRS; provided that until so amended, (a) such ratio, requirement or covenant shall continue to be computed in accordance with GAAP
or IFRS without giving effect to such change therein and (b) if reasonably requested by the Administrative Agent with respect to periods ending prior to the date that is one year after the effectiveness of such change, the Borrower shall
provide to the Administrative Agent (for distribution to the Lenders), together with any financial statements to be delivered pursuant to Section 6.01, a summary reconciliation between calculations of any such ratios or requirements
required to be included in the corresponding Compliance Certificate to be delivered pursuant to Section 6.02(1) made before and after giving effect to such change in GAAP or IFRS. For the avoidance of doubt, the operation of this
paragraph shall otherwise have no effect with respect to any financial statements required to be delivered pursuant to Section 6.01 unless the Borrower otherwise elects.
(3) At any time after the Closing Date, the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such
election, references herein to GAAP will thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided, however, that any such election, once made, will be irrevocable; provided further that any
calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS will remain as previously calculated or determined in accordance
with GAAP. The Borrower will give notice of any such election made in accordance with this Section 1.03(3) to the Administrative Agent.
(4) At any time after the Closing Date, the Borrower may elect to apply Accounting Standards Codification (ASC) 842 and, upon any such
election, the definition of “Finance Lease Obligation” shall be deemed to have been amended accordingly; provided that any calculation or determination in this Agreement that requires the application of GAAP for periods that
include fiscal quarters ended prior to the Borrower’s election to apply Accounting Standards Codification (ASC) 842 will remain as previously calculated or determined in accordance with GAAP. The Borrower will give notice of any such election
made in accordance with this Section 1.03(4) to the Administrative Agent.
(5) Unless the context indicates otherwise and
subject to the proviso to Section 6.16, any reference to a “fiscal year” shall refer to a fiscal year of the Borrower ending December 31st, and any reference to a
“fiscal quarter” shall refer to a fiscal quarter of the Borrower ending March 31st, June 30th, September 30th or December 31st.
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SECTION 1.04 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, (1) references to
Organizational Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document and (2) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
SECTION 1.06 Times of Day and Timing of Payment and Performance.
(1) Unless otherwise specified, (a) all references herein to times of day shall be references to New York time (daylight or standard, as
applicable) and (b) 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; provided that for purposes of calculating financial ratios and tests and determining compliance therewith, if payment is
made on any such extended due date, such payment shall be deemed to have been paid on the original due date without giving effect to any extension thereto.
(2) To the extent this Agreement or any other Loan Document permits an Agent or any other Person to grant an extension of time for the
performance of any covenant, duty or obligation hereunder or thereunder, such grant of extension may, in the discretion of such Agent or other Person, be effective retroactively; provided that any such grant of an extension after the deadline to
perform such covenant, duty or obligation has lapsed shall be automatically deemed to be effective retroactively as if granted prior to such lapsed deadline.
SECTION 1.07 Pro Forma and Other Calculations.
(1) Notwithstanding anything to the contrary herein, financial ratios and tests, including the Total Debt to Total Assets Ratio and the
Interest Coverage Ratio, shall be calculated in the manner prescribed by this Section 1.07; provided that notwithstanding anything to the contrary in clauses (2), (4) or (5) of this
Section 1.07, when calculating the Financial Covenants (other than for the purpose of determining pro forma compliance with the Financial Covenants), the events described in this Section 1.07 that occurred subsequent
to the end of the applicable Test Period shall not be given pro forma effect.
(2) For purposes of calculating any financial ratio
or test (or Total Assets), Specified Transactions (and, subject to clause (4) below, the incurrence or repayment of any Indebtedness in connection therewith) that have been made (a) during the applicable Test Period or
(b) subsequent to such Test Period and prior to or substantially concurrently with the event for which the calculation of any such ratio is made, shall be calculated on a pro forma basis assuming that all such Specified Transactions (and
any increase or decrease in Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period (or, in the case of Total Assets, on the last day of
the applicable Test Period). If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or
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consolidated with or into the Borrower or any Restricted Subsidiary since the beginning of such Test Period
shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.07, then such financial ratio or test (or Total Assets) shall be calculated to give pro forma effect thereto in accordance
with this Section 1.07; provided that with respect to any pro forma calculations to be made in connection with any acquisition or investment in respect of which financial statements for the relevant target are not available for
the same Test Period for which internal financial statements of the Borrower are available, the Borrower shall determine such pro forma calculations on the basis of the available financial statements (even if for differing periods) or such
other basis as determined on a commercially reasonable basis by the Borrower; provided, further, that whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good
faith by a Financial Officer of the Borrower.
(3) [Reserved].
(4) In the event that (a) the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees), issues or repays
(including by redemption, repurchase, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (other than Indebtedness incurred or repaid under any revolving credit facility or line of credit unless such Indebtedness has
been permanently repaid and not replaced), (b) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock, (c) any Restricted Subsidiary issues, repurchases or redeems Preferred Stock or (d) the Borrower or
any Restricted Subsidiary establishes or eliminates any Designated Revolving Commitments, in each case included in the calculations of any financial ratio or test (other than, the Interest Coverage Ratio test (or similar ratio test)) (and, in each
case of the foregoing clauses (a) and (d), any Lien incurred in connection therewith), (i) during the applicable Test Period or (ii) subsequent to the end of the applicable Test Period and prior to or simultaneously with the
event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, issuance, repayment or redemption of Indebtedness, issuance, repurchase or redemption
of Disqualified Stock or Preferred Stock, or establishment or elimination of any Designated Revolving Commitments, in each case to the extent required, as if the same had occurred on the last day of the applicable Test Period and, in the case of
Indebtedness for all purposes as if such Indebtedness in the full amount of any undrawn Designated Revolving Commitments had been incurred thereunder throughout such period.
(5) Interest on a Finance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a Financial Officer of the
Borrower to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP. 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 Borrower or applicable Restricted Subsidiary may designate.
(6) Notwithstanding anything to the contrary in this Section 1.07 or in any classification under GAAP of any Person, business,
assets or operations in respect of which a definitive agreement for the disposition thereof has been entered into, at the election of the Borrower, no pro forma effect shall be given to any discontinued operations until such disposition shall
have been consummated.
(7) [Reserved].
(8) Notwithstanding anything in this Agreement or any Loan Document to the contrary, in the event any Lien, Indebtedness (including any
Incremental Loans, Incremental Commitments, Permitted Incremental Equivalent Debt, Other Loans or Other Commitments), Disqualified Stock, Preferred Stock, Asset Sale, Investment, Restricted Payment, or other transaction, action, judgment or amount
incurred under any provision in this Agreement or any other Loan Document (or any of the foregoing in
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concurrent transactions, a single transaction or a series of related transactions) meets the criteria of one
or more than one of the categories of Baskets under this Agreement (including within any defined terms), including any Fixed Basket or Non-Fixed Basket, as applicable, the Borrower shall be permitted, in its
sole discretion, to divide and classify and to later, at any time and from time to time, re-divide and re-classify (including to
re-classify utilization of any Fixed Basket as being incurred under any Non-Fixed Basket or other Fixed Basket or utilization of any
Non-Fixed Basket as being incurred under any Fixed Basket or other Non-Fixed Basket) on one or more occasions (based on circumstances existing on the date of any such re-division and re-classification) any such Lien, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale, Investment, Restricted Payment, or other transaction, action,
judgment or amount, in whole or in part, among one or more than one applicable Baskets under this Agreement (in the case of re-classification or re-division, so long as
the amount so re-classified or re-divided is re-classified or re-divided only within the
same negative covenant (other than with respect to re-classification of Restricted Payments to Indebtedness pursuant to Section 7.02(2)(l)(i)(B) or pursuant to any
re-allocation of a basket from one negative covenant, on the one hand, to another negative covenant, on the other hand, to the extent such re-allocation is expressly
permitted under this Agreement) and permitted at the time of such re-classification or re-division to be incurred pursuant to the applicable Basket into which such
amount is re-classified or re-divided at such time). For the avoidance of doubt, the amount of any Lien, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale,
Investment, Restricted Payment or other transaction, action, judgment or amount that shall be allocated to each such Basket shall be determined by the Borrower at the time of such division, classification,
re-division or re-classification, as applicable. If any Lien, Indebtedness (including any Incremental Loans, Incremental Commitments, Permitted Incremental Equivalent
Debt, Other Loans or Other Commitments), Disqualified Stock, Preferred Stock, Asset Sale, Investment, Restricted Payment, or other transaction, action, judgment or amount incurred under any provision in this Agreement or any other Loan Document (or
any portion of the foregoing) previously divided and classified (or re-divided and re-classified) as set forth above under any Fixed Basket, could subsequently be re-divided and re-classified under a Non-Fixed Basket, such re-division and re-classification shall be deemed to occur automatically, in each case, unless otherwise elected by the Borrower. Notwithstanding the foregoing, any Indebtedness incurred under this Agreement (including on the
Closing Date) will, at all times, be classified as being incurred under Section 7.02(2)(a) and may not be re-classified. For all purposes hereunder, (a) “Fixed Basket” shall mean
any Basket that is subject to a fixed-dollar limit (including Baskets based on a percentage of Total Assets) and (b) “Non-Fixed Basket” shall mean any Basket that is subject to compliance
with a financial ratio or test (including the Total Debt to Total Assets Ratio, the Senior Debt to Total Assets Ratio and the Interest Coverage Ratio) (any such ratio or test, a “Financial Incurrence Test”).
(9) Notwithstanding anything in this Agreement or any Loan Document to the contrary, in calculating any
Non-Fixed Basket (a) [reserved], (b) any Indebtedness concurrently incurred to fund original issue discount or upfront fees and (c) any amounts incurred, or transactions entered into or consummated, in
reliance on a Fixed Basket (including the Free and Clear Incremental Amount and any amounts incurred under the Revolving Facility (or any other revolving facility)) in a concurrent transaction, a single transaction or a series of related
transactions with the amount incurred, or transaction entered into or consummated, under an applicable Non-Fixed Basket, in each case of the foregoing clauses (b) and (c), shall be
disregarded in the calculation of such Non-Fixed Basket; provided that full pro forma effect shall be given to all applicable and related transactions (including the use of proceeds of all
applicable Indebtedness incurred and any repayments, repurchases and redemptions of Indebtedness) and all other adjustments as to which pro forma effect may be given under this Section 1.07.
(10) If any Lien, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale, Investment, Restricted Payment, or other transaction, action,
judgment or amount (any of the foregoing in concurrent transactions, a single transaction or a series of related transactions) is incurred, issued, taken or consummated in reliance on categories of Baskets measured by reference to a percentage of
Total Assets, and any Lien, Indebtedness, Disqualified Stock, Preferred Stock, Asset Sale, Investment, Restricted
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Payment, or other transaction, action, judgment or amount (including in connection with refinancing thereof)
would subsequently exceed the applicable percentage of Total Assets if calculated based on the Total Assets on a later date (including the date of any refinancing or re-classification), such percentage of
Total Assets will be deemed not to be exceeded (so long as, in the case of refinancing any Indebtedness, Disqualified Stock or Preferred Stock (and any related Lien), the principal amount or the liquidation preference of such newly incurred or
issued Indebtedness, Disqualified Stock or Preferred Stock does not exceed the maximum principal amount, liquidation preference or amount of Refinancing Indebtedness in respect of the Indebtedness, Disqualified Stock or Preferred Stock being
refinanced, extended, replaced, refunded, renewed or defeased).
(11) Notwithstanding anything in this Agreement or any Loan Document to
the contrary, when (a) calculating any applicable Financial Incurrence Test, or availability under any Basket, in connection with the incurrence of any Limited Condition Transaction, any Indebtedness or any other transaction in connection with
a Limited Condition Transaction and any actions or transactions related thereto (including for all purposes under this clause (11), the making of acquisitions and investments, Asset Sales or other dispositions, the incurrence or issuance of
Indebtedness, Disqualified Stock or Preferred Stock and the use of proceeds thereof, the incurrence of Liens, repayments of Indebtedness, the making of Restricted Payments and/or the designation of a Subsidiary as a Restricted Subsidiary or an
Unrestricted Subsidiary), and (b) determining (i) compliance with any provision of this Agreement which requires that no Default or Event of Default (or any type of Default or Event of Default) has occurred, is continuing or would result
therefrom, (ii) compliance with any provision of this Agreement which requires compliance with any representations and warranties set forth or referenced herein or (iii) the satisfaction of any other conditions, in each case under this
clause (b), in connection with the incurrence of any Limited Condition Transaction, any Indebtedness or any other transaction in connection with a Limited Condition Transaction and any actions or transactions related thereto, in each case
under the foregoing clauses (a) and (b), the date of determination of such Financial Incurrence Test, availability under any Basket or other provisions, determination of whether any Default or Event of Default (or any type of
Default or Event of Default) has occurred, is continuing or would result therefrom, determination of compliance with any representations or warranties or the satisfaction of any other conditions shall, at the option of the Borrower (in its sole
discretion) (the Borrower’s election to exercise such option, an “LCT Election”, which LCT Election may be in respect of one or more of clauses (a), (b)(i), (b)(ii) and (b)(iii) above), be deemed
to be (A) any of the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Transaction, Indebtedness or other transaction in connection with such Limited Condition Transaction or action or
transaction related thereto, as applicable, including, at the Borrower’s option, any amendment entered into in connection therewith, are entered into (or, solely in connection with an acquisition to which the United Kingdom City Code on
Takeovers and Mergers applies, at the option of the Borrower, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer (or equivalent announcement in another jurisdiction)) (or, (I) in the case of any
redemption, repurchase, defeasance, satisfaction and discharge or repayment of, or tender or exchange offer in respect of, Indebtedness, the date on which notice with respect to such Limited Condition Transactions is delivered or such offer, as
applicable, is made, (II) in the case of any Restricted Payment, the date of declaration thereof and (III) in the case of any other action or transaction, any similar event) or (B) the time of funding of any of the applicable
Indebtedness or consummation of such Limited Condition Transaction or other transaction in connection therewith or action or transaction related thereto (provided that, notwithstanding the LCT Election made under the foregoing clauses
(A) and (B), the Borrower may elect (in its sole discretion) to re-determine one or more of clauses (a), (b)(i), (b)(ii) and (b)(iii) above and the availability
under any applicable Basket at the time of, at the election of the Borrower, (x) funding of any of the applicable Indebtedness or consummation of such Limited Condition Transaction or other transaction in connection therewith or action or
transaction related thereto or (y) if occurring after the relevant date described in the foregoing clause (A) with respect thereto, any financial statements becoming internally available prior to the funding of the applicable
Indebtedness or consummation of such Limited Condition Transaction or other transaction in connection therewith or
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action or transaction related thereto (such date in clause (A) or (B), the
“LCT Test Date”) and, subject to the other provisions of this Section 1.07(11), if, after giving pro forma effect to the Limited Condition Transaction, any Indebtedness or other transaction in connection
therewith and any actions or transactions related thereto and any related pro forma adjustments, the Borrower 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 Basket (and any related requirements and conditions), such Basket (and any related requirements and conditions) shall be deemed to have been complied with (or satisfied) for all purposes; provided, that
compliance with such 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 (as such date may be updated to reflect any amendment to the definitive transaction documents as set forth above), any Indebtedness or other
transaction incurred in connection therewith and any actions or transactions related thereto.
(12) For the avoidance of doubt, if the
Borrower has made an LCT Election, (a) 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 Financial Incurrence Test or Basket, including due to fluctuations in Total Assets of the Borrower or the Person subject to such Limited Condition Transaction, such baskets, tests or ratios will
be deemed not to have been exceeded or failed to have been complied with as a result of such fluctuations, (b) other than as expressly set forth in clause (11), if any related requirements and conditions (including as to the absence of
any (or any type of) continuing Default or Event of Default and satisfaction of any representations and warranties) 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 any Default or Event of Default or failure to satisfy any representations and warranties), such requirements and conditions will be deemed not 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 such representations and warranties shall be deemed to have been satisfied) and (c) in calculating the
availability under any Financial Incurrence Test or Basket in connection with any action or 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 or declaration for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such
Limited Condition Transaction, any such Financial Incurrence Test or Basket shall be determined or tested giving pro forma effect to such Limited Condition Transaction and any actions or transactions related thereto.
(13) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial
ratio or financial test (including Section 7.08 hereof, any Total Asset test, Total Debt to Total Asset Ratio test, Senior Debt to Total Assets Ratio test and/or any Interest Coverage Ratio test), such financial ratio, financial test or
amount shall, subject to this Section 1.07, be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed
to have occurred solely as a result of a change in such financial ratio, financial test or amount occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.
(14) Without limiting clause (11) above, if the Borrower or any of its Restricted Subsidiaries obtains any delayed draw term loan
facility or other committed term debt facility, at the election of the Borrower, for purposes of determining capacity under, and compliance with the terms of, the Available Incremental Amount and/or Sections 7.01 and 7.02, such delayed
draw term loan facility or other committed term debt facility may, with respect to all or any portion thereof, at the election of the
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Borrower, be (a) deemed to be fully drawn, and such capacity and compliance shall be tested, at the
time the commitments in respect of such delayed draw term loan facility or such committed term debt facility are initially established, in which case subsequent borrowings under such facility shall not constitute an additional incurrence of
Indebtedness or Liens for purposes of determining capacity under, and compliance with the terms of, the Available Incremental Amount and/or Sections 7.01 and 7.02, (b) deemed to be drawn in any amount determined by the Borrower, and
such capacity and compliance with respect to such amount shall be determined, on any date that could constitute an LCT Test Date, in which case the subsequent borrowing of such amount under such facility shall not constitute an additional incurrence
of Indebtedness or Liens for purposes of determining capacity under, and compliance with the terms of, the Available Incremental Amount and/or Sections 7.01 and 7.02 or (c) deemed incurred, and such capacity and compliance shall
be determined, as and when funded; provided, that, commitments with respect to any delayed draw term loan facility that the Borrower has elected to disregard at the initial establishment of such delayed draw term loan facility for purposes of
determining capacity under, and compliance with the terms of, the Available Incremental Amount and/or Sections 7.01 and 7.02, unfunded amounts of such delayed draw term loan facility shall not be included in any determination of
“Required Lenders” or “Required DDTL Lenders” if such delayed draw term loan facility were not established in good faith for a bona fide business purpose.
SECTION 1.08 Available Amount Transaction. If more than one action occurs on any given date the permissibility of the taking of
which is determined hereunder by reference to the amount specified in clause (b) of Section 7.05(1) immediately prior to the taking of such action, the permissibility of the taking of each such action shall be determined
independently and in no event may any two or more such actions be treated as occurring simultaneously (i.e., each transaction must be permitted under clause (b) of Section 7.05(1) as so calculated).
SECTION 1.09 Guaranties of Hedging Obligations. Notwithstanding anything else to the contrary in any Loan Document, no non-Qualified ECP Guarantor shall be required to guarantee or provide security for Excluded Swap Obligations, and any reference in any Loan Document with respect to such
non-Qualified ECP Guarantor guaranteeing or providing security for the Obligations shall be deemed to be all Obligations other than the Excluded Swap Obligations.
SECTION 1.10 Currency Generally.
(1) The Borrower shall determine in good faith the Dollar equivalent amount of any utilization or other measurement denominated in a currency
other than Dollars for purposes of compliance with any Basket. For purposes of determining compliance with any Basket under Article II, VII or VIII with respect to any amount expressed in a currency other than Dollars, no
Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Basket utilization occurs or other Basket measurement is made (so long as such Basket utilization or other
measurement, at the time incurred, made or acquired, was permitted hereunder). Except with respect to any ratio calculated under any Basket, any subsequent change in rates of currency exchange with respect to any prior utilization or other
measurement of a Basket previously made in reliance on such Basket (as the same may have been reallocated in accordance with this Agreement) shall be disregarded for purposes of determining any unutilized portion under such Basket.
(2) For purposes of determining Total Indebtedness, Total Senior Indebtedness, Total Debt to Total Assets and Senior Debt to Total Assets
Ratio, the amount of Indebtedness and cash and Cash Equivalents shall reflect the currency translation effects, determined in accordance with GAAP, of Hedging Obligations permitted hereunder for currency exchange risks with respect to the applicable
currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.
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SECTION 1.11 Letters of Credit. Unless otherwise specified herein, the amount of
a Letter of Credit at any time shall be deemed to be the maximum amount available to be drawn under such Letter of Credit in effect at such time (not to exceed the stated amount of such Letter of Credit in effect at such time after giving effect to
any automatic reductions or increases, as applicable, to such stated amount pursuant to the terms of the applicable Letter of Credit after the occurrence of any applicable condition (including the expiration of any applicable period);
provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any L/C Application related thereto, provides for one or more automatic increases in the stated amount thereof, the stated amount of such
Letter of Credit shall be deemed to be 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).
SECTION 1.12 Benchmark Replacement Setting.
(1) Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, the
Administrative Agent and the Borrower may, without further action or consent of any other party to this Agreement or any other Loan Document, amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment
with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted notice of such proposed amendment to all
affected Lenders and the Borrower so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Required Lenders, or to the extent only affecting certain Facilities, Required
Facility Lenders of the affected Facility or Facilities (in the case of multiple Facilities affected, voting as one Class), without further action or consent of any other party to this Agreement or any other Loan Document. No replacement of a
Benchmark with a Benchmark Replacement pursuant to this Section 1.12(1) will occur prior to the applicable Benchmark Transition Start Date.
(2) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the
right to make Benchmark Replacement Conforming Changes (subject to the consent rights of the Borrower set forth in such definition) from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(3) The Administrative Agent will promptly notify the Borrower and the Lenders of (a) the implementation of any Benchmark Replacement,
(b) the effectiveness of any Benchmark Replacement Conforming Changes, (c) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1.12(4) and (d) the commencement or conclusion of any Benchmark
Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or the Borrower as expressly set forth in this Section 1.12 and the defined terms used herein, 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 1.12.
(4) 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), (a) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (i) 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 and in consultation with the
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Borrower or (ii) 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 not or will not be representative, then the Administrative Agent may, with the consent of the Borrower (such consent not to be unreasonably withheld),
modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor,
(b) if a tenor that was removed pursuant to clause (a) above either (i) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (ii) is not, or is no longer,
subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may, with the consent of the Borrower (such consent not to be unreasonably withheld), modify
the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor and (c) if a new tenor for such Benchmark is displayed on a
screen or other information service selected by the Administrative Agent in its reasonable discretion and in consultation with the Borrower, then the Administrative Agent may, with the consent of the Borrower (such consent not to be unreasonably
withheld), modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to add such new tenor.
(5) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (a) the Borrower may revoke any
request for a Borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a
request for a Borrowing of or conversion to Base Rate Loans and (b) during the continuance of any Benchmark Unavailability Period, any outstanding affected Term SOFR Loans will be deemed to have been converted to Base Rate Loans at the end of
the applicable Interest Period. 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 the Base Rate based upon the then-current Benchmark or such tenor for
such Benchmark, as applicable, will not be used in any determination of the Base Rate.
SECTION 1.13 Rates. The Administrative
Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, or calculation of the Base Rate, the Term SOFR Reference Rate or Term SOFR, or
any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such
alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, Base Rate, the Term SOFR Reference Rate, Term SOFR or
any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. The Administrative Agent and its Affiliates or other related entities may
engage in transactions that affect the calculation of Base Rate, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a
manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain Base Rate, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, or any component definition
thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, 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.
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ARTICLE II
The Commitments and Borrowings
SECTION 2.01 The Loans.
(1) Term Borrowings. Subject to the terms and conditions set forth in Section 4.01 hereof, each Term Lender severally
agrees to make to the Borrower on the Closing Date one or more Closing Date Term Loans denominated in Dollars in an aggregate principal amount equal to such Term Lender’s Closing Date Term Loan Commitment on the Closing Date. Amounts borrowed
under this Section 2.01(1) and repaid or prepaid may not be reborrowed. The Closing Date Term Loans may be Base Rate Loans or Term SOFR Loans, as further provided herein.
(2) Revolving Borrowings. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans
denominated in Dollars from its applicable Lending Office (each such loan, a “Revolving Loan”) to the Borrower from time to time, on any Business Day during the period from the Closing Date until the Maturity Date, in an aggregate
principal amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided that after giving effect to any Revolving Borrowing, the aggregate Outstanding Amount of the Revolving Loans of any Lender
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus, in the case of each Lender other than a Swing Line Lender (in its capacity as such), such Lender’s Applicable Percentage of the
Outstanding Amount of all Swing Line Loans, shall not exceed such Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under
this Section 2.01(2), prepay under Section 2.05 and reborrow under this Section 2.01(2). Revolving Loans may be Base Rate Loans or Term SOFR Loans, as further provided herein.
SECTION 2.02 Borrowings, Conversions and Continuations of Loans.
(1) Each Term Borrowing, each Revolving Borrowing, each conversion of Term Loans or Revolving Loans from one Type to the other, and each
continuation of Term SOFR Loans shall be made upon the Borrower’s irrevocable notice, on behalf of the Borrower, to the Administrative Agent (provided that the notice in respect of the initial Credit Extension, or in connection with any
Permitted Acquisition or other transaction not prohibited under this Agreement, may be conditioned on the closing of such Permitted Acquisition or other transaction, as applicable), which may be given by delivering a Committed Loan Notice to the
Administrative Agent. Unless otherwise agreed by the Administrative Agent and the Borrower, each such notice must be received by the Administrative Agent not later than (a) 1:00 p.m., New York time, three (3) Business Days prior to the
requested date of any Borrowing or continuation of Term SOFR Loans or any conversion of Base Rate Loans to Term SOFR Loans and (b) 1:00 p.m., New York time, one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans or
any conversion of Term SOFR Loans to Base Rate Loans; provided that the notice referred to in subclause (i) above may be delivered not later than 1:00 p.m., New York time, one (1) Business Day prior to the Closing Date (in
the case of the Closing Date Loans) and any Incremental Facility Closing Date. Except as provided in Sections 2.14, 2.15 and 2.16, each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a principal
amount of $500,000 or a whole multiple amount of $100,000 in excess thereof. Except as provided in Sections 2.03(3), 2.04(3), 2.14, 2.15 and 2.16, each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple amount of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify:
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(a) whether the Borrower is requesting a Term Borrowing, a Revolving
Borrowing, a conversion of Term Loans or Revolving Loans from one Type to the other or a continuation of Term SOFR Loans,
(b) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day),
(c) the principal amount of Loans to be borrowed, converted or continued,
(d) the Class and Type of Loans to be borrowed or to which existing Term Loans or Revolving Loans are to be converted,
(e) if applicable, the duration of the Interest Period with respect thereto, and
(f) wire instructions of the account(s) to which funds are to be disbursed.
If the Borrower fails to specify a Type of Loan to be made in a Committed Loan Notice, then the applicable Loans shall be made as Term SOFR
Loans with an Interest Period of one (1) month. If the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made or continued as the same Type of Loan, which if a Term SOFR Loan,
shall have a one-month Interest Period. Any such automatic continuation of Term SOFR Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
(1) month.
(2) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Pro Rata Share or other applicable share provided for under this Agreement of the applicable Class of Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic continuation of Term SOFR Loans or continuation of Loans described in Section 2.02(1). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available
to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than, in the case of Borrowing on the Closing Date, 10:00 a.m., New York time, and otherwise 2:00 p.m., New York time, on the Business Day specified
in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Article IV for any Borrowing, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (a) crediting the account(s) of the Borrower on the books of the Administrative Agent with the amount of such funds or (b) wire transfer of such funds, in each case in accordance with instructions
provided by the Borrower to (and reasonably acceptable to) the Administrative Agent; provided that if on the date the Committed Loan Notice with respect to a Borrowing under a Revolving Facility is given by the Borrower, there are Swing Line
Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first, to the payment in full of any such L/C Borrowing and second, to the payment in full of any such Swing Line Loans, and third, to the Borrower as
provided above.
(3) Except as otherwise provided herein, a Term SOFR Loan may be continued or converted only on the last day of an
Interest Period for such Term SOFR Loan. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent at the direction of the Required Facility Lenders under the applicable Facility may require by notice to the
Borrower that no Loans under such Facility may be converted to or continued as Term SOFR Loans.
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(4) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Term SOFR Loans upon determination of such interest rate. The determination of Term SOFR by the Administrative Agent shall be conclusive in the absence of manifest error. At any time when Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the prime rate used in determining the Base Rate promptly following the public announcement of such change.
(5) After giving effect to all Term Borrowings, all Revolving Borrowings, all conversions of Term Loans or Revolving Loans from one Type to
the other, and all continuations of Term Loans or Revolving Loans as the same Type, there shall not be more than fifteen (15) Interest Periods in effect unless otherwise agreed between the Borrower and the Administrative Agent; provided
that after the establishment of any new Class of Loans pursuant to an Incremental Amendment, a Refinancing Amendment, an Extension Amendment or an amendment in respect of Replacement Loans, the number of Interest Periods otherwise permitted by
this Section 2.02(5) shall increase by three (3) Interest Periods for each applicable Class so established.
(6) The
failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
(7) 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 on the Closing Date, not later than 9:30 a.m., New York time, on the Closing Date, or, in the case of any
Borrowing of Base Rate Loans after the Closing Date, not later than 1:30 p.m., New York time, on the date of such Borrowing, that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share or other applicable
share provided for under this Agreement of such Borrowing, the Administrative Agent may assume that such Lender has made such Pro Rata Share and such other applicable share available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (2) above, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower 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 Borrower 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 Borrower until the date such amount is repaid to the Administrative Agent at (a) in the case of the Borrower, the interest rate applicable at the
time to the Loans comprising such Borrowing and (b) in the case of such Lender, the Overnight Rate 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(7) shall be conclusive in the absence of manifest error. If the Borrower 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 Borrower the amount of such Borrowing or interest paid
by the Borrower 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 Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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SECTION 2.03 Letters of Credit.
(1) The Letter of Credit Commitments.
(a) Subject to the terms and conditions set forth herein, (i) Administrative Agent (or its Affiliates) and each Issuing
Bank agrees, in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.03, (A) from time to time on any Business Day while the Revolving Commitments remain in effect during the period from the Closing
Date until the L/C Expiration Date, to issue (I) in the case of the Administrative Agent, a Support Agreement or (II) in the case of the Issuing Bank, Letters of Credit denominated in Dollars for the account of the Borrower or any of the
Borrower’s Restricted Subsidiaries (in which case, so long as the Borrower is a co-applicant and jointly and severally liable thereunder) (provided that any such Letter of Credit may be for the benefit
of any Subsidiary of the Borrower) and to amend or extend such Support Agreement or Letters of Credit previously issued by it, in accordance with Section 2.03(2), and (B) to honor drawings under the Supported Letters of Credit or
Letters of Credit (in accordance with the terms thereof) and (ii) the Revolving Lenders severally agree to participate in Supported Letters of Credit and Letters of Credit issued pursuant to this Section 2.03; provided that
no Issuing Bank shall be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in any Letter of Credit if as of the date of such L/C Credit Extension and after giving effect
thereto, (x) the Revolving Exposure of any Revolving Lender would exceed such Lender’s Revolving Commitment, (y) the L/C Sublimit Availability would be less than zero or (z) the Outstanding Amount of the L/C Obligations issued
by such Issuing Bank would exceed its L/C Commitment. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may,
during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(b) An Issuing Bank shall be under no obligation to issue any Letter of Credit or Supported Letters of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain
such Issuing Bank from issuing such Letter of Credit, or any Law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or
direct that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which
such Issuing Bank is not otherwise compensated hereunder);
(ii) subject to Section 2.03(2)(c), the expiry date
of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless (A) each Appropriate Lender has approved of such expiration date or (B) the Outstanding Amount of L/C Obligations
in respect of such requested Letter of Credit has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank on or prior to the date that is twelve months after the date of issuance thereof;
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(iii) subject to Section 2.03(2)(c), the expiry date of such
requested Letter of Credit would occur after the L/C Expiration Date, unless (A) each Appropriate Lender has approved of such expiration date or (B) the Outstanding Amount of L/C Obligations in respect of such requested Letter of Credit
has been Cash Collateralized or back-stopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank on or prior to the L/C Expiration Date;
(iv) the issuance of such Letter of Credit would violate any bona fide policies of such Issuing Bank applicable to letters of
credit generally; or
(v) any Revolving Lender is at that time a Defaulting Lender, unless such Issuing Bank has entered
into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving
effect to Section 2.17(1)(d)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such Issuing Bank has actual or
potential Fronting Exposure, as it may elect in its sole discretion.
(c) An Issuing Bank shall be under no obligation to
amend any Letter of Credit if (i) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (ii) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(2) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit.
(a) Each Supported Letter of Credit or Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to (i) with respect to Supported Letters of Credit, the Administrative Agent and (ii) with respect to Letters of Credit, the applicable Issuing Bank in the form of a L/C Application, appropriately
completed and signed by a Responsible Officer of the Borrower. Such L/C Application must be received by the Administrative Agent or relevant Issuing Bank (as applicable) not later than 1:00 p.m., New York time, 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 Administrative Agent or relevant Issuing Bank (as applicable) may agree in a particular instance in its sole discretion.
In the case of a request for an initial issuance of a Supported Letter of Credit or Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the Administrative Agent or relevant Issuing Bank (as applicable):
(i) the proposed issuance date of the requested Supported Letter of Credit or Letter of Credit (which shall be a Business
Day);
(ii) the amount thereof;
(iii) the expiry date thereof;
(iv) the name and address of the beneficiary thereof;
(v) the documents to be presented by such beneficiary in case of any drawing thereunder;
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(vi) the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and
(vii) such other matters as the relevant Issuing Bank or Administrative Agent, as
applicable, may reasonably request.
In the case of a request for an amendment of any outstanding Supported Letter of
Credit or Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the relevant Issuing Bank:
(i) the Supported Letter of Credit or Letter of Credit to be amended;
(ii) the proposed date of amendment thereof (which shall be a Business Day);
(iii) the nature of the proposed amendment; and
(iv) such other matters as the relevant Issuing Bank or Administrative Agent, as applicable, may reasonably request.
(b) Promptly after receipt of any L/C Application, with respect to Letters of Credit, the relevant Issuing Bank will confirm
with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such L/C Application from the Borrower and, if not, such Issuing Bank will provide the Administrative Agent with a copy thereof. Upon
receipt by the relevant Issuing Bank of confirmation from the Administrative Agent that the requested issuance or amendment is permitted in accordance with the terms hereof (or upon receipt of the L/C Application by the Administrative Agent with
respect to a Supported Letter of Credit), then, subject to the terms and conditions hereof, such Issuing Bank with respect to the Letters of Credit (or the Administrative Agent with respect to a Supported Letter of Credit) shall, on the requested
date, issue a Letter of Credit or Supported Letter of Credit, as applicable, for the account of the Borrower (or, if applicable, for the benefit of a Subsidiary of the Borrower) or enter into the applicable amendment, as the case may be. Immediately
upon the issuance of each Supported Letter of Credit or Letter of Credit, each Revolving Lender shall be deemed to, and hereby immediately irrevocably and unconditionally agrees to, purchase from the Administrative Agent or relevant Issuing Bank a
risk participation in such Supported Letter of Credit or Letter of Credit, as applicable, in an amount equal to the product of such Lender’s Applicable Percentage of the amount of such Letter of Credit or such Supported Letter of Credit, as
applicable.
(c) If the Borrower so requests in any applicable L/C Application, the relevant Issuing Bank shall agree to
issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit may permit the relevant Issuing Bank to prevent any such
extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed upon by the relevant Issuing Bank and the Borrower at the time such Letter of Credit is issued. Unless
otherwise agreed in such Letter of Credit, the Borrower shall not be required to make a specific request to the relevant Issuing Bank for any such extension. Once an Auto-Extension Letter of Credit has been issued, the applicable Lenders shall be
deemed to have authorized (but may not require) the relevant Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the applicable L/C Expiration Date, unless the Outstanding Amount of L/C
Obligations in respect of such requested Letter of Credit will be Cash
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Collateralized or back-stopped by a letter of credit reasonably satisfactory to the
applicable Issuing Bank prior to the applicable L/C Expiration Date; provided that the relevant Issuing Bank shall not be required to allow such extension if (i) the relevant Issuing Bank has determined that it would not be permitted at such
time to issue such Letter of Credit in its extended form under the terms hereof (by reason of the provisions of Section 2.03(1)(b) or otherwise) or (ii) it has received notice (which may be by telephone or in writing) on or before
the day that is ten (10) Business Days before the Non-Extension Notice Date from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions specified in
Section 4.02 will not be satisfied on the applicable date of the Credit Extension.
(d) Promptly after issuance
of any Letter of Credit or any amendment to a Letter of Credit, the relevant Issuing Bank will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(3) Drawings and Reimbursements; Funding of Participations.
(a) Upon receipt from the beneficiary of any Letter of Credit of a compliant drawing under such Letter of Credit, the relevant
Issuing Bank shall promptly notify the Borrower and the Administrative Agent thereof (including the date on which such payment is to be made). Not later than 2:00 p.m., New York time, on the first
(1st) Business Day immediately following written notice to the Borrower (or, if such notice is received less than two (2) hours prior to the deadline for requesting a Borrowing of Base Rate
Loans, on the second Business Day immediately following written notice to the Borrower) of (i) any payment by an Issuing Bank under a Letter of Credit or (ii) any payment by the Administrative Agent (or its affiliate) to an Issuing Bank
pursuant to a Support Agreement (each such date, an “Honor Date”), the Borrower shall reimburse, or cause to be reimbursed, (A) the Administrative Agent in the case of Support Agreements or (B) such Issuing Bank
in the case of a Letter of Credit through the Administrative Agent, in an amount equal to the amount of such drawing; provided that, if such reimbursement is not made on the date of payment by the Administrative Agent or Issuing Bank (as
applicable), the Borrower shall pay interest to the Administrative Agent or relevant Issuing Bank on such amount at the rate applicable to Base Rate Loans (without duplication of interest payable on L/C Borrowings). With respect to Letters of
Credit, the relevant Issuing Bank shall notify the Borrower of the amount of the drawing promptly following the determination thereof. If the Borrower fails to so reimburse, or cause to be reimbursed, the Administrative Agent (with respect to a
Support Agreement) or such Issuing Bank (with respect to a Letter of Credit), as applicable, by such time, the Issuing Bank shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly then notify each Appropriate
Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Appropriate Lender’s Applicable Percentage thereof. In such event, in the case of an Unreimbursed
Amount under a Supported Letter of Credit or Letter of Credit, the Borrower shall be deemed to have irrevocably requested a Revolving Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
unaffected by any circumstance whatsoever, including (without limitation) (x) the occurrence and continuance of a Default or Event of Default, (y) the fact that, whether before or after giving effect to the making of any such Revolving
Loan, the outstanding aggregate principal amount of the Revolving Loans exceed or will exceed the Revolving Commitment and/or (z) the non-satisfaction of any conditions set forth in
Section 4.02; provided, however, that in no event shall any Lender be obligated to fund in excess of its Revolving Commitment after giving effect to its share of L/C Obligations (and, to the extent not duplicative, any
effect to its share of Revolving Exposure), and without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans. Any notice given by an Issuing Bank or the Administrative Agent pursuant
to this Section 2.03(3)(a) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
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(b) Each Appropriate Lender (including any Lender acting as an Issuing Bank)
shall absolutely and unconditionally be obligated, upon any notice pursuant to Section 2.03(3)(a), to make funds available to the Administrative Agent for the account of the relevant Issuing Bank (in the case of Letters of Credit) or the
Administrative Agent (in the case of Support Agreements), as applicable, in Dollars at the Administrative Agent’s Office for payments in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m., New
York time, on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(3)(c), each Appropriate Lender that so makes funds available shall be deemed to have made a
Revolving Loan that is a Base Rate Loan to the Borrower in such amount and, for the avoidance of doubt, the making of such Base Rate Loans in an aggregate amount equal to such Unreimbursed Amount shall satisfy the Borrower’s reimbursement
obligations with respect thereof. The Administrative Agent shall remit the funds so received to the relevant Issuing Bank in the case of Letters of Credit (or utilize such funds to cover the Supported Letters of Credit).
(c) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of Base Rate Loans for any
reason, the Borrower shall be deemed to have incurred from the relevant Issuing Bank (in the case of a Letter of Credit) or for its own account (in the case of a Support Agreement) 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 Appropriate Lender’s payment to the Administrative Agent for the account of the
relevant Issuing Bank (in the case of a Letter of Credit) or for its own account (in the case of a Support Agreement) pursuant to Section 2.03(3)(b) 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; provided that, notwithstanding anything herein to the contrary, an Issuing Bank may waive, by written notice to
the Administrative Agent, the requirement to make L/C Advances to such Issuing Bank with respect to certain Lenders (any such Lender, an “Excused Lender”), in which case the portion of an L/C Borrowing owed to such Issuing
Bank that an Excused Lender would be obligated to pay by means of funding an L/C Advance if not for the operation of this proviso shall remain outstanding and no other Lender shall have any obligation under this Agreement to make an L/C Advance in
respect of, or otherwise reimburse or indemnify such Issuing Bank for, such amount.
(d) Until each Appropriate Lender
funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(3) to reimburse the relevant Issuing Bank or the Administrative Agent, as applicable, for any amount drawn under any Letter of Credit or Supported Letter of Credit, as
applicable, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the relevant Issuing Bank.
(e) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the Administrative Agent or
an Issuing Bank for amounts drawn under Supported Letters of Credit or Letters of Credit, as applicable, as contemplated by this Section 2.03(3), shall be absolute and unconditional and shall not be affected by any circumstance,
including:
(i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the
relevant Issuing Bank (including any claim for improper amount or payment), the Administrative Agent, the Borrower or any other Person for any reason whatsoever;
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(ii) the occurrence or continuance of a Default; or
(iii) any other occurrence, event or condition, whether or not similar to any of the foregoing.
No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the Administrative Agent or
relevant Issuing Bank, as applicable, for the amount of any payment made by the Administrative Agent or such Issuing Bank under any Supported Letter of Credit or Letter of Credit, together with interest as provided herein.
(f) If any Revolving Lender fails to make available to the Administrative Agent for the account of the Administrative Agent or
relevant Issuing Bank, as applicable, any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(3) by the time specified in Section 2.03(3)(b), the Administrative Agent or such
Issuing Bank (as applicable) 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 Administrative Agent or such Issuing Bank at a rate per annum equal to the Overnight Rate from time to time in effect. A certificate of the Administrative Agent or relevant Issuing Bank, as applicable,
submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(3)(f) shall be conclusive absent manifest error.
(4) Repayment of Participations.
(a) If, at any time after the Administrative Agent or an Issuing Bank has made a payment under any Supported Letter of Credit
or Letter of Credit and has received from any Revolving Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(3), the Administrative Agent receives for the account of the Administrative Agent
or such Issuing Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its 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
amount received by the Administrative Agent.
(b) If any payment received by the Administrative Agent for the account of
the Administrative Agent or an Issuing Bank pursuant to Section 2.03(3)(a) or Section 2.03(3)(b) is required to be returned under any of the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by such Issuing Bank in its discretion), each Appropriate Lender shall pay to the Administrative Agent for the account of the Administrative Agent or such Issuing Bank 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 Overnight Rate from time to time in effect. The Obligations of the Revolving
Lenders under this Section 2.03(4)(b) shall survive the payment in full of the Obligations and the termination of this Agreement.
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(5) Obligations Absolute. The obligation of the Borrower to reimburse the
Administrative Agent or the relevant Issuing Bank for each drawing under each Supported Letter of Credit or Letter of Credit, as applicable, 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:
(a) any
lack of validity or enforceability of such Supported Letter of Credit or Letter of Credit, this Agreement, or any other agreement or instrument relating thereto;
(b) the existence of any claim, counterclaim, setoff, defense (including any claim for improper payment) or other right that
any Loan Party may have at any time against any beneficiary or any transferee of such Supported Letter of Credit or Support Agreement or Letter of Credit, as applicable (or any Person for whom any such beneficiary or any such transferee may be
acting), the relevant Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Supported Letter of Credit or Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;
(c) any draft, demand, certificate or other document presented under such Supported Letter of
Credit or Support Agreement or Letter of Credit, as applicable, 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 Supported Letter of Credit, Support Agreement or Letter of Credit;
(d) any payment by the Administrative Agent or relevant Issuing Bank under such Supported Letter of Credit, Support Agreement
or Letter of Credit, as applicable, against presentation of a draft or certificate that does not strictly comply with the terms of such Supported Letter of Credit or Support Agreement or Letter of Credit; or any payment made by the Administrative
Agent or relevant Issuing Bank under such Supported Letter of Credit or Support Agreement or Letter of Credit, as applicable, 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
Supported Letter of Credit or Support Agreement or Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(e) any exchange, release or non-perfection of any Collateral, or any release or
amendment or waiver of or consent to departure from the Guaranty or any other guarantee, for all or any of the Obligations of any Loan Party in respect of such Supported Letter of Credit or Support Agreement or Letter of Credit;
(f) any affiliation between the Issuing Bank and the Administrative Agent; or
(g) 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 the Administrative Agent with respect to Support Agreements or any Issuing Bank with respect to Letters of Credit from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of
which are waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are caused by acts or omissions by such Issuing Bank constituting gross negligence, bad faith or willful misconduct on the part of the
Administrative Agent or such Issuing Bank as determined in a final and non-appealable judgment by a court of competent jurisdiction.
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(6) Role of Issuing Banks with respect to Letters of Credit and Administrative Agent with
respect to Support Agreements. Each Issuing Bank in the case of Letters of Credit (and the Administrative Agent, in the case of Support Agreements) shall be entitled to rely upon, and shall be fully protected in relying upon, any note, writing,
resolution, notice, statement, certificate or facsimile message, order or other document or telephone message signed, sent or made by any Person that such Issuing Bank or the Administrative Agent, as applicable, reasonably believed to be genuine and
correct and to have been signed, sent or made by the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Loan Document and its duties hereunder and thereunder, upon advice of counsel selected by such
Issuing Bank (which may include, at the Issuing Bank’s option, counsel of the Administrative Agent or the Borrower) or the Administrative Agent, as applicable. Each Lender and the Borrower agree that, in paying any drawing under a Letter of
Credit or Supported Letter of Credit, the relevant Issuing Bank or Administrative Agent, as applicable, shall not have any responsibility to obtain any document (other than any documents expressly required by the Letter of Credit or Support
Agreement, as applicable) 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 Issuing Banks or Administrative Agent, any Related Person
of such Issuing Banks or Administrative Agent, nor any of the respective correspondents, participants or assignees of any Issuing Bank or Administrative Agent shall be liable to any Lender for:
(a) any action taken or omitted in connection herewith at the request or with the approval of the Lenders, the Required Lenders
or the Required Facility Lenders in respect of the Revolving Commitments, as applicable;
(b) any action taken or omitted
in the absence of gross negligence, bad faith or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction; or
(c) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit,
Support Agreement or L/C Application, as applicable.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit or Supported Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the Issuing Banks or Administrative Agent, any Related Person of such Issuing Banks or Administrative Agent, nor any of the respective correspondents, participants or assignees
of any Issuing Bank or Administrative Agent, shall be liable or responsible for any of the matters described in clauses (a) through (f) of Section 2.03(5); provided that anything in such clauses to
the contrary notwithstanding, the Borrower may have a claim against an Issuing Bank or Administrative Agent, and such Issuing Bank or Administrative Agent may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential, damages suffered by the Borrower which the Borrower proves were caused by such Issuing Bank’s or Administrative Agent’s willful misconduct, bad faith or gross negligence or such Issuing Bank’s or
Administrative Agent’s willful or grossly negligent, or bad faith, failure to pay under any Letter of Credit or Supported Letter of Credit, as applicable, after the presentation to it by the beneficiary of document(s) strictly complying with
the terms and conditions of a Letter of Credit or Supported Letter of Credit, as applicable, in each case as determined in a final and non-appealable judgment by a court of competent jurisdiction. In
furtherance and not in limitation of the foregoing, each Issuing Bank or Administrative Agent, as applicable, 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 Issuing Bank nor the Administrative Agent 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 Support
Agreement 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.
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Each Revolving Lender shall, ratably in accordance with its Applicable Percentage, indemnify
each Issuing Bank and Administrative Agent, each of their Related Persons and their respective directors, officers, agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable and documented
(in reasonable detail) counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from such indemnitees’ willful misconduct, bad faith or gross negligence or such Issuing Bank’s or Administrative
Agent’s willful or grossly negligent, or bad faith, failure to pay under any Letter of Credit or Support Agreement, as applicable, after the presentation to it by the beneficiary of documents(s) strictly complying with the terms and conditions
of a Letter of Credit in each case as determined in a final and non-appealable judgment by a court of competent jurisdiction) that such indemnitees may suffer or incur in connection with this
Section 2.03 or any action taken or omitted to be taken by such indemnitees hereunder.
(7) Cash
Collateral. Subject to Section 2.17(1)(d), if
(a) as of any L/C Expiration Date, any applicable Supported
Letter of Credit or Letter of Credit may for any reason remain outstanding and partially or wholly undrawn,
(b) any Event
of Default occurs and is continuing and the Administrative Agent, upon the direction of the Required Facility Lenders in respect of the Revolving Facility, requires the Borrower to Cash Collateralize the L/C Obligations pursuant to
Section 8.02, or
(c) an Event of Default set forth under Section 8.01(6) with respect to the
Borrower occurs and is continuing,
the Borrower will Cash Collateralize, or cause to be Cash Collateralized, the then Outstanding Amount of all relevant
L/C Obligations (in an amount equal to 103% of such Outstanding Amount determined as of the date of such Event of Default or the applicable L/C Expiration Date, as the case may be), and shall do so not later than 2:00 p.m., New York time, on
(i) in the case of the immediately preceding clauses (a) or (b), (A) the Business Day that the Borrower receives notice thereof, if such notice is received on such day prior to 12:00 p.m., New York time, or (B) if
clause (A) above does not apply, the Business Day immediately following the day that the Borrower receives such notice and (ii) in the case of the immediately preceding clause (c), the Business Day on which an Event of
Default set forth under Section 8.01(6) with respect to the Borrower occurs or, if such day is not a Business Day, the Business Day immediately succeeding such day. At any time that there shall exist a Defaulting Lender, immediately upon
the request of the Administrative Agent or the applicable Issuing Bank, the Borrower will Cash Collateralize all Fronting Exposure (after giving effect to Section 2.17(1)(d) and any Cash Collateral provided by the Defaulting Lender). The
Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Banks and the Revolving Lenders, a security interest in all such Cash Collateral. Cash Collateral shall be maintained in blocked accounts at a financial institution
designated by the Administrative Agent and may be invested in readily available Cash Equivalents selected by the Borrower, but subject to the approval of the Administrative Agent in its sole discretion. If at any time the Administrative Agent
determines that any funds held as Cash Collateral are expressly subject to any right or claim of any Person other than the Loan Parties or the Administrative Agent (in its capacity as the depository bank and on behalf of the Secured Parties) or that
the total amount of such funds is less than 103% of the aggregate Outstanding Amount of all relevant L/C Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay, or cause to be paid, to the Administrative Agent, as
additional funds to be deposited and held in the deposit accounts at the Administrative Agent as aforesaid, an amount equal to the excess of (I) 103% of such aggregate Outstanding Amount over (II) the total amount of funds, if any, then held as
Cash Collateral that
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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 Issuing Bank. To the extent the amount of any Cash Collateral
exceeds 103% of the then Outstanding Amount of such relevant L/C Obligations and so long as no Event of Default has occurred and is continuing, the excess shall promptly be refunded to the Borrower. To the extent any Event of Default giving rise to
the requirement to Cash Collateralize any Supported Letter of Credit or Letter of Credit pursuant to this Section 2.03(7) is cured or otherwise waived, then so long as no other Event of Default has occurred and is continuing, the amount of any
Cash Collateral pledged to Cash Collateralize such Supported Letter of Credit or Letter of Credit shall promptly be refunded to the Borrower.
(8) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender for the
applicable Revolving Facility in accordance with its Applicable Percentage, a Letter of Credit fee for each Supported Letter of Credit (or Support Agreement) and Letter of Credit issued pursuant to this Agreement equal to the Applicable Rate set
forth in the “Term SOFR Loans and Letter of Credit Fees” column of the chart in clause (2) of the definition of “Applicable Rate” times the daily maximum amount then available to be drawn under such Supported
Letter of Credit (or Support Agreement) or Letter of Credit (whether or not such maximum amount is then in effect under such Supported Letter of Credit (or Support Agreement) or Letter of Credit if such maximum amount decreases or increases
periodically pursuant to the terms of such Supported Letter of Credit (or Support Agreement) or Letter of Credit); provided, however, that any Supported Letter of Credit (or Support Agreement) or Letter of Credit fees otherwise payable
for the account of a Defaulting Lender with respect to any Supported Letter of Credit (or Support Agreement) or Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the Administrative Agent, with
respect to Supported Letters of Credit (or Support Agreement), or the applicable Issuing Bank, with respect to Letters of Credit, pursuant to this Section 2.03 shall be payable, to the maximum extent permitted by applicable Law, to the
other Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Supported Letter of Credit (or Support Agreement) or Letter of Credit pursuant to Section 2.17(1)(d), with the balance
of such fee, if any, payable to the Administrative Agent or applicable Issuing Bank for their own accounts. Such Letter of Credit fees shall be computed on a quarterly basis in arrears on the basis of a
360-day year and actual days elapsed. Such fees shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of
such Supported Letter of Credit (or Support Agreement) or Letter of Credit, on the L/C Expiration Date and thereafter on demand. If there is any change in the Applicable Rate set forth in the “Term SOFR Loans and Letter of Credit Fees”
column of the chart in clause (2) of the definition of “Applicable Rate” during any quarter, the daily maximum amount of each Supported Letter of Credit (or Support Agreement) or 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.
(9) Fronting Fee and
Documentary and Processing Charges Payable to Issuing Banks. The Borrower shall pay directly to (a) the Administrative Agent for its own account a fronting fee with respect to each Supported Letter of Credit (or Support Agreement) issued by
the Administrative Agent and (b) with respect to each Letter of Credit issued by each Issuing Bank, for its own account, a fronting fee, in each case of the foregoing clauses (a) and (b) equal to 0.25% per annum (or
such other lower amount as may be mutually agreed by the Borrower and the Administrative Agent or the Borrower and the applicable Issuing Bank, as applicable) of the maximum amount then available to be drawn under such Supported Letter of Credit (or
Support Agreement) or Letter of Credit (whether or not such maximum amount is then in effect under such Supported Letter of Credit (or Support Agreement) or Letter of Credit if such maximum amount increases or decreases periodically pursuant to the
terms of such Supported Letter of Credit (or Support Agreement) or Letter of Credit) or such lesser fee as may be agreed with such Issuing Bank or the Administrative Agent, as applicable. Such fronting fees or fronting expense reimbursements, as
applicable,
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shall be computed on a quarterly basis in arrears on the basis of a 360-day year and actual days elapsed. Such fronting fees or fronting expense
reimbursements, as applicable, shall be due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Supported Letter of Credit or Letter of Credit, on
the L/C Expiration Date and thereafter on demand. In addition, the Borrower shall pay, or cause to be paid, directly to the Administrative Agent or each Issuing Bank, as applicable, for its own account with respect to each Supported Letter of Credit
(or Support Agreement) or Letter of Credit issued by the Administrative Agent or such Issuing Bank (as applicable) the customary issuance, presentation, amendment, administration and other processing fees, and other standard costs and charges, of
the Administrative Agent or such Issuing Bank relating to letters of credit (or Support Agreements, as applicable) as from time to time in effect. Such customary fees and standard costs and charges are due and payable within thirty
(30) calendar days of written demand therefor and are nonrefundable.
(10) Conflict with L/C Application. Notwithstanding
anything else to the contrary in this Agreement or any L/C Application, in the event of any conflict between the terms hereof and the terms of any L/C Application, the terms hereof shall control.
(11) Addition of an Issuing Bank. There may be one or more Issuing Banks under this Agreement from time to time. After the Closing
Date, a Revolving Lender (or any of its Affiliates) reasonably acceptable to the Borrower and the Administrative Agent may become an additional Issuing Bank hereunder pursuant to a written agreement among the Borrower, the Administrative Agent and
such Revolving Lender. The Administrative Agent shall notify the Revolving Lenders of any such additional Issuing Bank.
(12)
Provisions Related to Extended Revolving Commitments. If the L/C Expiration Date in respect of any Class of Revolving Commitments occurs prior to the expiry date of any Supported Letter of Credit (or Support Agreement) or Letter of
Credit, then (a) if consented to by the Issuing Bank which issued such Letter of Credit or by the Administrative Agent which issued such Supported Letter of Credit (or Support Agreement), if one or more other Classes of Revolving Commitments in
respect of which the L/C Expiration Date shall not have so occurred are then in effect, such Letters of Credit or Supported Letter of Credit (or Support Agreement) for which consent has been obtained shall automatically be deemed to have been issued
(including for purposes of the obligations of the Revolving Lenders to purchase participations therein and to make Revolving Loans and payments in respect thereof pursuant to Sections 2.03(3) and (4)) under (and ratably participated in
by Revolving Lenders pursuant to) the Revolving Commitments in respect of such non-terminating Classes up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving
Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit or Supported Letter of Credit (or Support Agreement) may be so reallocated) and (b) to the extent not reallocated pursuant to
immediately preceding clause (a) and unless provisions reasonably satisfactory to the applicable Issuing Bank or the Administrative Agent for the treatment of such Letter of Credit or Supported Letter of Credit (or Support Agreement) as
a letter of credit under a successor credit facility have been agreed upon, the Borrower shall, on or prior to the applicable Maturity Date, cause all such Letters of Credit or Supported Letter of Credit (or Support Agreement) to be replaced and
returned to the applicable Issuing Bank or the Administrative Agent undrawn and marked “cancelled” or to the extent that the Borrower is unable to so replace and return any Letter(s) of Credit or Supported Letter(s) of Credit (or Support
Agreement), such Letter(s) of Credit or Supported Letter(s) of Credit (or Support Agreement) shall be backstopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank or Administrative Agent (as applicable) or the Borrower
shall Cash Collateralize any such Letter of Credit or Supported Letter of Credit (or Support Agreement), as applicable in accordance with Section 2.03(7).
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(13) Letter of Credit Reports. For so long as any Letter of Credit issued by an
Issuing Bank that is not the Administrative Agent is outstanding, such Issuing Bank shall deliver to the Administrative Agent on the last Business Day of each calendar month, and on each date that an L/C Credit Extension occurs with respect to any
such Letter of Credit, a report substantially in the form of Exhibit R-1, appropriately completed with the information for every outstanding Letter of Credit issued by such Issuing Bank.
(14) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Supported Letter of Credit (or Support Agreement) or Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary of the Borrower, the Borrower shall be obligated to reimburse, or cause to be reimbursed, the Administrative Agent or applicable
Issuing Bank (as applicable) hereunder for any and all drawings under such Supported Letter of Credit (or Support Agreement) or Letter of Credit. The Borrower hereby acknowledges that the issuance of Supported Letter of Credit (or Support Agreement)
or Letters of Credit for the account of any Subsidiary inures to the benefit of the Borrower, and that the Borrower’s businesses derives substantial benefits from the businesses of each Subsidiary.
(15) Applicability of ISP and UCP. Unless otherwise expressly agreed by the Administrative Agent and the Borrower or the relevant
Issuing Bank and the Borrower, as applicable, when a Supported Letter of Credit or Letter of Credit is issued, (a) the rules of the ISP shall apply to each standby Supported Letter of Credit or Letter of Credit and (b) the rules of the UCP
shall apply to each commercial Supported Letter of Credit or Letter of Credit.
SECTION 2.04 Swing Line Loans.
(1) The Swing Line. Subject to the terms and conditions set forth herein, each Swing Line Lender severally agrees to make revolving
credit loans in Dollars to the Borrower (each such loan, a “Swing Line Loan”), from time to time on any Business Day during the period beginning on the Business Day after the Closing Date and until the Maturity Date of the
Revolving Facility in an aggregate amount not to exceed at any time outstanding the amount of such Swing Line Lender’s Swing Line Commitment, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage
of the Outstanding Amount of Revolving Loans and L/C Obligations of each Lender acting as a Swing Line Lender, may exceed the amount of such Swing Line Lender’s Revolving Commitment; provided that, (x) after giving effect to any
Swing Line Loan (i) the aggregate Revolving Exposure shall not exceed the aggregate Revolving Commitments and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (y) the Borrower shall not
use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and
binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan will be obtained or maintained as a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lenders 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.
(2) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which shall be given by a Swing Line Loan Notice. Each such notice must be received by the Administrative Agent not later than 10:00 a.m., New York time, on the requested Borrowing date (or such later time as agreed by the
Administrative Agent) and shall specify (a) the amount to be borrowed, which shall be a minimum of $100,000 and (b) the requested Borrowing date, which shall be a Business Day. In the case of each Swing
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Line Borrowing, each Swing Line Lender shall make the amount of its Swing Line Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later
than 3:30 p.m., New York time, on the Business Day specified in the applicable Swing Line Loan Notice. Notwithstanding anything to the contrary contained in this Section 2.04 or elsewhere in this Agreement, no Swing Line Lender shall be
obligated to make any Swing Line Loan at a time when a Revolving Lender is a Defaulting Lender unless such Swing Line Lender has entered into arrangements reasonably satisfactory to it and the Borrower to eliminate the Swing Line Lender’s
Fronting Exposure (after giving effect to Section 2.17(1)(d)) with respect to the Defaulting Lender’s or Defaulting Lenders’ participation in such Swing Line Loans, including by Cash Collateralizing, or obtaining a backstop
letter of credit from an issuer reasonably satisfactory to such Swing Line Lender to support, such Defaulting Lender’s or Defaulting Lenders’ Applicable Percentage of the outstanding Swing Line Loans.
(3) Repayment or Refinancing of Swing Line Loans.
(a) A Swing Line Lender at any time in its sole and absolute discretion may request, by written notice to the Borrower, the
Administrative Agent and the Revolving Lenders, on behalf of the Borrower (which hereby irrevocably authorizes such Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans of the Borrower 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 not in excess of the unutilized portion of the aggregate Revolving
Commitments and subject to the conditions set forth in Section 4.02. Such Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.
Each Revolving 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 Same Day Funds for the account of the Swing Line Lenders at the
Administrative Agent’s Office not later than 3:30 p.m., New York time, on the date specified in such Committed Loan Notice, whereupon, subject to Section 2.04(3)(b), each Revolving Lender that so makes funds available shall be
deemed to have made a Revolving Loan that is a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(b) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Borrowing in accordance with
Section 2.04(3)(a) (including as a result of a proceeding under any Debtor Relief Law), the request for Base Rate Loans submitted by the relevant Swing Line Lender as set forth herein shall be deemed to be a request by such Swing Line
Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent for the account of the Swing Line Lenders pursuant to
Section 2.04(3)(a) shall be deemed payment in respect of such participation.
(c) If any Revolving Lender fails
to make available to the Administrative Agent for the account of the Swing Line Lenders any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(3) by the time specified in
Section 2.04(3)(a), the Swing Line Lenders 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 Lenders at a rate per annum equal to the Overnight Rate from time to time in effect. If such Revolving Lender pays such amount, the amount so paid shall constitute such
Lender’s Revolving Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of any Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (c) shall be conclusive absent manifest error.
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(d) Each Revolving Lender’s obligation to make Revolving Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(3) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line Lenders, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default, or (iii) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(3) (but not to purchase and fund risk participations in Swing
Line Loans) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay the applicable Swing Line Loans, together with interest
as provided herein.
(e) Swing Line Reports. For so long as there is any Swing Line Lender other than the
Administrative Agent, such Swing Line Lender shall deliver to the Administrative Agent on the last Business Day of each calendar month, and on each date that the funding or repayment of a Swing Line Loan by such Swing Line Lender occurs with respect
to any such Swing Line Loan, a report in the form of Exhibit R-2, appropriately completed with the information for every Swing Line Loan made by such Swing Line Lender.
(f) At any time that there shall exist a Defaulting Lender, immediately upon the request of the relevant Swing Line Lender, the
Borrower will prepay Swing Line Loans in amount equal to the relevant Swing Line Lender’s Fronting Exposure (after giving effect to Section 2.17(1)(d)).
(4) Repayment of Participations.
(a) At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the relevant
Swing Line Lender receives any payment on account of such Swing Line Loan, such 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 such Swing Line Lender.
(b) If any payment received by the relevant Swing Line Lender in respect of principal or interest on any Swing Line Loan is
required to be returned by such Swing Line Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by such Swing Line Lender in its discretion), each Revolving Lender shall pay
to such 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 Overnight Rate. The
Administrative Agent will make such demand upon the request of the relevant Swing Line Lender. The obligations of the Revolving Lenders under this clause (4)(b) shall survive the payment in full of the Obligations and the termination of this
Agreement.
(5) Interest for Account of Swing Line Lender. Until each Revolving Lender funds its Base Rate Loan 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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(6) Payments Directly to Administrative Agent. The Borrower shall make all payments
of principal and interest in respect of the Swing Line Loans to the Administrative Agent for the benefit of the Swing Line Lender.
(7)
Provisions Related to Extended Revolving Commitments. If the Maturity Date shall have occurred in respect of any Class of Revolving Commitments (the “Expiring Credit Commitment”) at a time when another Class or
Classes of Revolving Commitments is or are in effect with a later Maturity Date (each a “Non-Expiring Credit Commitment” and collectively, the
“Non-Expiring Credit Commitments”), then with respect to each outstanding Swing Line Loan, if consented to by the applicable Swing Line Lender, on the earliest occurring Maturity Date such
Swing Line Loan shall be deemed reallocated to the Class or Classes of the Non-Expiring Credit Commitments on a pro rata basis; provided that (a) to the extent that the amount of such
reallocation would cause the aggregate credit exposure to exceed the aggregate amount of such Non-Expiring Credit Commitments, immediately prior to such reallocation (after giving effect to any repayments of
Revolving Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.03(12)) the amount of Swing Line Loans to be reallocated equal to such excess shall be repaid and (b) notwithstanding the
foregoing, if a Default has occurred and is continuing, the Borrower shall still be obligated to pay Swing Line Loans allocated to the Revolving Lenders holding the Expiring Credit Commitments at the Maturity Date of the Expiring Credit Commitment
or if the Loans have been accelerated prior to the Maturity Date of the Expiring Credit Commitment.
(8) Addition of a Swing Line
Lender. A Revolving Lender reasonably acceptable to the Borrower and the Administrative Agent may become a Swing Line Lender hereunder pursuant to a written agreement among the Borrower, the Administrative Agent and such Revolving Lender (which
agreement shall include the Swing Line Sublimit for such Swing Line Lender). The Administrative Agent shall notify the Revolving Lenders of any such Swing Line Lender.
SECTION 2.05 Prepayments.
(1) Optional.
(a) The Borrower may, upon notice to the Administrative Agent by the Borrower, at any time or from time to time voluntarily
prepay any Class or Classes of Term Loans and any Class or Classes of Revolving Loans in whole or in part without premium (except as set forth in Section 2.18) or penalty; provided that, unless otherwise agreed between
the Administrative Agent and the Borrower,
(i) such notice must be received by the Administrative Agent not later than (A)
1:00 p.m., New York time, three (3) Business Days prior to any date of prepayment of Term SOFR Loans and (B) 1:00 p.m., New York time, on the date of prepayment of Base Rate Loans;
(ii) any prepayment of Term SOFR Loans shall be in a principal amount of $250,000 or a whole multiple of $100,000 in excess
thereof or, if less, the entire principal amount thereof then outstanding; and
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(iii) any prepayment of Base Rate Loans shall be in a principal amount of
$250,000 or a whole multiple of $100,000 in excess thereof or, if less, the entire principal amount thereof then outstanding.
Each such
notice shall specify the date and amount of such prepayment and the Class(es) and Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such
Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
Notwithstanding anything herein to the contrary, the Administrative Agent may, in its sole discretion, waive any notice requirement under this Section 2.05(1).
Any prepayment of a Term SOFR Loan shall be accompanied by all accrued interest thereon. In the case of each prepayment of the Loans pursuant
to this Section 2.05(1), the Borrower may in its sole discretion select the Borrowing or Borrowings (and the order of maturity of principal payments) to be repaid, and such payment shall be paid to the Appropriate Lenders
in accordance with their respective Pro Rata Shares.
(b) The Borrower may, upon notice to the Swing Line Lenders by the
Borrower (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, unless otherwise agreed between the Swing Line Lenders and the
Borrower, (i) such notice must be received by the Swing Line Lenders not later than 2:00 p.m., New York time, on the date of the prepayment and (ii) any such prepayment shall be in a minimum principal amount of $100,000 or a whole multiple
amount of $10,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c)
Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind (or delay the date of prepayment identified in) any notice of prepayment under Section 2.05(1)(a) or Section 2.05(1)(b) by written
notice to the Administrative Agent (with a copy to the Swing Line Lenders in the case of a prepayment of Swing Line Loans) not later than 1:00 p.m., New York time, on such prepayment date if such prepayment would have resulted from a refinancing of
all or a portion of the applicable Facility or other transaction or conditional event, which refinancing or other transaction or conditional event shall not be consummated or shall otherwise be delayed.
(d) Voluntary prepayments of any Class of Term Loans permitted hereunder shall be applied to the remaining scheduled
installments of principal thereof in a manner determined at the discretion of the Borrower and specified in the notice of prepayment (and absent such direction, in direct order of maturity). Each prepayment in respect of any Term Loans pursuant to
this Section 2.05 may be applied to any Class of Term Loans as directed by the Borrower. For the avoidance of doubt, the Borrower may (i) prepay Term Loans of an Existing Term Loan Class pursuant to this
Section 2.05 without any requirement to prepay Extended Term Loans that were converted or exchanged from such Existing Term Loan Class and (ii) prepay Extended Term Loans pursuant to this Section 2.05 without any
requirement to prepay Term Loans of an Existing Term Loan Class that were converted or exchanged for such Extended Term Loans. In the event that the Borrower does not specify the order in which to apply prepayments to reduce scheduled
installments of principal or as between Classes of Term Loans, the Borrower shall be deemed to have elected that such proceeds be applied to reduce the scheduled installments of principal in direct order of maturity on a pro rata basis among Term
Loan Classes.
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(e) Notwithstanding anything in any Loan Document to the contrary, so long
as (x) no Event of Default has occurred and is continuing and (y) no proceeds of Revolving Loans are used for this purpose (unless, after giving effect to such purchase or prepayment, the sum of the aggregate Revolving Commitments
less the aggregate Revolving Exposure of all Revolving Lenders plus the Liquidity is at least $25,000,000), any Borrower Party may (i) purchase outstanding Term Loans on a non-pro rata basis
through open market purchase (including other privately negotiated purchases (including exchanges)) or (ii) prepay the outstanding Term Loans (which Term Loans shall, for the avoidance of doubt, be automatically and permanently canceled
immediately upon such purchase or prepayment), which in the case of clause (ii) above only shall be prepaid without premium or penalty on the following basis:
(A) Any Borrower Party shall have the right to make a voluntary prepayment of Loans at a discount to par pursuant to a Borrower
Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “Discounted Term Loan Prepayment”), in each case
made in accordance with this Section 2.05(1)(e) and without premium or penalty.
(B) (I) Any Borrower Party may
from time to time offer to make a Discounted Term Loan Prepayment by providing the Auction Agent with five (5) Business Days’ notice (or such shorter period as agreed by the Auction Agent) in the form of a Specified Discount Prepayment
Notice; provided that (1) any such offer shall be made available, at the sole discretion of the applicable Borrower Party, to (a) each Term Lender or (b) each Term Lender with respect to any Class of Term Loans on an
individual Class basis, (2) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable Class, the Class or Classes
of Term Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Term Loans to be prepaid (it being understood that different Specified Discounts or Specified Discount Prepayment
Amounts may be offered with respect to different Classes of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.05(1)(e)(B)), (3) the Specified Discount Prepayment
Amount shall be in an aggregate amount not less than $1,000,000 and whole increments of $500,000 in excess thereof and (4) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will
promptly provide each Appropriate Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Term Lender to the Auction Agent (or its delegate)
by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (the “Specified Discount Prepayment Response Date”).
(II) Each Term Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount
Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Term Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”),
the amount and the Classes of such Lender’s Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Term Lender whose Specified
Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount Prepayment.
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(III) If there is at least one Discount Prepayment Accepting Lender, the
relevant Borrower Party will make a prepayment of outstanding Term Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender in accordance with the respective outstanding amount and Classes of Term Loans specified
in such Lender’s Specified Discount Prepayment Response given pursuant to clause (II) above; provided that if the aggregate principal amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders
exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment
Accepting Lender and the Auction Agent (in consultation with such Borrower Party and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount
Proration”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (1) the Borrower of the respective Term Lenders’ responses to
the relevant Borrower Party’s offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Term Loan Prepayment and the Classes to be prepaid, (2) each Term Lender of the Discounted Prepayment
Effective Date, and the aggregate principal amount and the Classes of Term Loans to be prepaid at the Specified Discount on such date and (3) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and
confirmation of the principal amount, Class and Type of Term Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and
such Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the applicable Borrower Party on the Discounted Prepayment Effective
Date in accordance with clause (F) below (subject to clause (J) below).
(C) (I) Any Borrower Party may
from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice (or such shorter period as agreed by the Auction Agent) in the form of a Discount Range Prepayment Notice given
by the Borrower; provided that (1) any such solicitation shall be extended, at the sole discretion of such Borrower Party, to (a) each Term Lender or (b) each Term Lender with respect to any Class of Term Loans on an individual
Class basis, (2) any such notice shall specify the maximum aggregate principal amount of the relevant Term Loans (the “Discount Range Prepayment Amount”), the Class or Classes of Term Loans subject to such offer and
the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Term Loans with respect to each relevant Class of Term Loans willing to be prepaid by such Borrower Party (it being
understood that different Discount Ranges or Discount Range Prepayment Amounts may be offered with respect to different Classes of Term Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this
Section 2.05(1)(e)(C)), (3) the Discount Range Prepayment Amount shall be in an
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aggregate amount not less than $1,000,000 and whole increments of $500,000 in excess thereof and (4) unless rescinded, each such solicitation by the applicable Borrower Party shall remain
outstanding through the Discount Range Prepayment Response Date (as defined below). The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment
Offer to be submitted by a responding Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of delivery of such notice to such Lenders (the “Discount Range
Prepayment Response Date”). Each Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Lender is
willing to allow prepayment of any or all of its then outstanding Term Loans of the applicable Class or Classes and the maximum aggregate principal amount and Classes of such Lender’s Term Loans (the “Submitted Amount”)
such Term Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to
accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.
(II) The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range
Prepayment Response Date and shall determine (in consultation with such Borrower Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such
Applicable Discount in accordance with this Section 2.05(1)(e)(C). The relevant Borrower Party agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by the Auction Agent by the
Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest
discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an
aggregate principal amount equal to the lower of (1) the Discount Range Prepayment Amount and (2) the sum of all Submitted Amounts. Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to
par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following clause
(III) of this Section 2.05(1)(e)(C)) at the Applicable Discount (each such Term Lender, a “Participating Lender”).
(III) If there is at least one Participating Lender, the relevant Borrower Party will prepay the respective outstanding Term
Loans of each Participating Lender in the aggregate principal amount and of the Classes specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating
Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a
discount to par equal to the Applicable Discount (the “Identified Participating Lenders”)
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shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with
such Borrower Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”). All Discount Range Prepayment Offers including a
Submitted Discount at a discount to par greater than the Applicable Discount shall be repaid, and will not be subject to pro-ration. The Auction Agent shall promptly, and in any case within five
(5) Business Days following the Discount Range Prepayment Response Date, notify (1) the Borrower of the respective Term Lenders’ responses to the relevant Borrower Party’s solicitation, the Discounted Prepayment Effective Date,
the Applicable Discount, the aggregate principal amount of the Discounted Term Loan Prepayment and the Classes to be prepaid, (2) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount and the aggregate principal
amount and Classes of Term Loans to be prepaid at the Applicable Discount on such date, (3) each Participating Lender of the aggregate principal amount and Classes of such Term Lender to be prepaid at the Applicable Discount on such date and
(4) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Borrower Party and Term Lenders shall be conclusive
and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the applicable Borrower Party on the Discounted Prepayment Effective Date in accordance with
Section 2.05(1)(e)(F) below (subject to Section 2.05(1)(e)(J) below).
(D) (I) Any Borrower Party
may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Solicited Discounted Prepayment Notice given by the Borrower (or such later notice
specified therein); provided that (1) any such solicitation shall be extended, at the sole discretion of such Borrower Party, to (a) each Term Lender or (b) each Lender with respect to any Class of Term Loans on an
individual Class basis, (2) any such notice shall specify the maximum aggregate amount of the Term Loans (the “Solicited Discounted Prepayment Amount”) and the Class or Classes of Term Loans the applicable Borrower
Party is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different Classes of Term Loans and, in such event, each such offer will be treated as a separate
offer pursuant to the terms of this Section 2.05(1)(e)(D)), (3) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $1,000,000 and whole increments of $500,000 in excess thereof and (4) unless
rescinded, each such solicitation by the applicable Borrower Party shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited
Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York time, on the third Business Day after the date of
delivery of such notice to such Term Lenders (the “Solicited Discounted Prepayment Response Date”). Each Term Lender’s Solicited Discounted Prepayment Offer shall (i) be irrevocable, (ii) remain outstanding until
the Acceptance Date and (iii) specify both a discount to par (the “Offered Discount”) at which such Term Lender is willing to allow prepayment of its then outstanding Term Loan and the maximum aggregate principal amount and
Classes of such Term Loans (the “Offered Amount”) such Term Lender is willing to have prepaid at the Offered Discount. Any Term Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the
Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount.
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(II) The Auction Agent shall promptly provide the relevant Borrower Party
with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. Such Borrower Party shall review all such Solicited Discounted Prepayment Offers and select the smallest of the
Offered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the applicable Borrower Party (the “Acceptable Discount”), if any. If the applicable Borrower
Party elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by such Borrower
Party from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subclause (II) (the “Acceptance Date”), the Borrower shall submit an Acceptance and Prepayment
Notice to the Auction Agent setting forth the Acceptable Discount of the applicable Borrower Party. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Borrower by the Acceptance Date, such Borrower Party shall be
deemed to have rejected all Solicited Discounted Prepayment Offers.
(III) Based upon the Acceptable Discount and the
Solicited Discounted Prepayment Offers received by the Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment
Determination Date”), the Auction Agent will determine (with the consent of such Borrower Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the
Classes of Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the relevant Borrower Party at the Acceptable Discount in accordance with this Section 2.05(1)(e)(D). If the Borrower elects to accept any
Acceptable Discount, then the applicable Borrower Party agrees to accept all Solicited Discounted Prepayment Offers received by the Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to
smallest Offered Discount, up to and including the Acceptable Discount. Each Term Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to
have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender,
a “Qualifying Lender”). The applicable Borrower Party will prepay outstanding Term Loans pursuant to this Section 2.05(1)(e)(D) to each Qualifying Lender in the aggregate principal amount and of the Classes specified
in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the
Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Term Loans for those Qualifying Lenders whose Offered Discount is equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be
made pro rata among the Identified
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Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with such Borrower Party and subject to rounding
requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). All Offered Amounts including an Offered Discount at a discount to par greater than the
Acceptable Discount shall be prepaid, and will not be subject to proration. On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (1) the Borrower of the Discounted Prepayment Effective Date and
Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the Classes to be prepaid, (2) each Term Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all
Term Loans and the Classes to be prepaid to be prepaid at the Applicable Discount on such date, (3) each Qualifying Lender of the aggregate principal amount and the Classes of such Term Lender to be prepaid at the Acceptable Discount on such
date and (4) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower and Term Lenders shall be conclusive and
binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the applicable Borrower Party on the Discounted Prepayment Effective Date in accordance with
Section 2.05(1)(e)(F) below (subject to Section 2.05(1)(e)(J) below).
(E) In connection with any
Discounted Term Loan Prepayment, the Borrower and the Term Lenders acknowledge and agree that the Auction Agent may require, as a condition to the applicable Discounted Term Loan Prepayment, the payment of customary fees and expenses from a Borrower
Party to such Auction Agent for its own account in connection therewith. In addition, and for the avoidance of doubt, the Borrower shall not be required to represent or warrant that it is not in possession of material
non-public information with respect to the Borrower and/or its subsidiaries.
(F)
If any Term Loan is prepaid in accordance with Section 2.05(1)(e)(B) through Sections 2.05(1)(e)(D) above, a Borrower Party shall prepay such Term Loans on the Discounted Prepayment Effective Date. The relevant Borrower Party
shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available
funds not later than 12:00 p.m., New York time, on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the relevant Class(es) of Term Loans and Lenders as specified by the applicable Borrower Party in the applicable
offer. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans
pursuant to this Section 2.05(1)(e) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders or Qualifying Lenders, as applicable, and shall be applied to the relevant Term Loans of such Lenders in accordance
with their respective applicable share as calculated by the Auction Agent in accordance with this Section 2.05(1)(e) and, if the Administrative Agent is not the Auction Agent, the Administrative Agent shall be fully protected in relying
on such calculations of the Auction Agent. The aggregate principal amount of the Classes and installments of the relevant Term Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the Classes of Term
Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Term Loan Prepayment.
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(G) To the extent not expressly provided for herein, each Discounted Term
Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Section 2.05(1)(e), established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the applicable
Borrower Party.
(H) Notwithstanding anything in any Loan Document to the contrary, for purposes of this
Section 2.05(1)(e), each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon Auction Agent’s (or its delegate’s) actual
receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next
succeeding Business Day.
(I) Each of the Borrower and the Term Lenders acknowledge and agree that the Auction Agent may
perform any and all of its duties under this Section 2.05(1)(e) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of
such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in
this Section 2.05(1)(e) as well as activities of the Auction Agent.
(J) The Borrower shall have the right, by
written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted
Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date, Discount Range Prepayment Response Date or Solicited Discounted Prepayment Response Date (and if such offer is
revoked pursuant to the preceding clauses, any failure by such Borrower Party to make any prepayment to a Lender, as applicable, pursuant to this Section 2.05(1)(e) shall not constitute a Default or Event of Default under
Section 8.01 or otherwise).
(K) Notwithstanding the foregoing, the Borrower and the Administrative Agent may
agree to modifications of the procedures above from time to time, without the need for notice to or consent of any Person; provided that such revised procedures shall be incorporated as part of the notice provided in any offer undertaken pursuant to
this Section 2.05(1)(e). Further, notwithstanding anything to the contrary, the provisions of this Section 2.05(1)(e) shall permit any transaction permitted by such Section to be conducted on a Class by Class basis
and on a non-pro rata basis across Classes, in each case, as selected by the Borrower.
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(2) Mandatory.
(a) [Reserved].
(b) (i) If (A) the Borrower or any Restricted Subsidiary makes an Asset Sale or (B) any Casualty Event occurs, which
results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Proceeds, the Borrower shall prepay, or cause to be prepaid, on or prior to the date which is ten (10) Business Days after the date of the realization or
receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds, subject to Section 2.05(2)(b)(ii) and Sections 2.05(2)(f) and (g), an aggregate principal amount of Term Loans equal to 100% (such percentage as it
may be reduced as described below, the “Net Proceeds Percentage”) of all Net Proceeds realized or received; provided that no prepayment shall be required pursuant to this Section 2.05(2)(b)(i) with respect to such
portion of such Net Proceeds that the Borrower reinvests (or has entered into a binding commitment or a signed letter of intent to reinvest) or intends to invest in accordance with Section 2.05(2)(b)(ii); provided further that the
Net Proceeds Percentage shall be (I) 50.0%, if the Senior Debt to Total Assets Ratio is equal to or less than 70.0%, (II) 25.0%, if the Senior Debt to Total Assets Ratio is equal to or less than 64.5% and (III) 0.0%, if the Senior Debt to Total
Assets Ratio is equal to or less than 60.0% (provided, that, in each case, (x) the Net Proceeds Percentage shall be calculated after giving effect to such Asset Sale or Casualty Event and the use of proceeds thereof (including the repayment of
Indebtedness) and (y) the Senior Debt to Toal Assets Ratio shall be determined, at the Borrower’s option, at the time of such disposition, at the time of entry into a definitive agreement with respect thereto or at the time of application
of the net cash proceeds therefrom) (any amount of Net Proceeds not required to be applied to make a prepayment due to the operation of this proviso, “Retained Asset Sale Proceeds”); provided further that if at the time
that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to Discharge or offer to Discharge any Other Applicable Indebtedness with Other Applicable Net Proceeds pursuant to the terms of the documentation
governing such Indebtedness, then the Borrower (or any Restricted Subsidiary) may apply such Net Proceeds otherwise required to repay the Term Loans pursuant to this Section 2.05(2)(b)(i) on a pro rata basis (determined on the
basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness requiring such Discharge or offer to Discharge at such time), to the prepayment of the Term Loans and to an offer to repurchase or prepay Other
Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(2)(b)(i) shall be reduced accordingly (provided that the portion of such Net Proceeds
allocated to the Other Applicable Indebtedness shall not exceed the amount of such Other Applicable Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such
portion of Net Proceeds shall be allocated to the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(b)(i)); provided that for purposes of this paragraph each holder of Other Applicable
Indebtedness shall be assumed to have accepted, or not declined, any such offer to repurchase or prepay such Other Applicable Indebtedness.
(ii) With respect to any Net Proceeds realized or received with respect to any Asset Sale or any Casualty Event, the Borrower
or any Restricted Subsidiary, at its option, may (A) reinvest (directly or indirectly including through any non-prohibited Investment (including, for the avoidance of doubt, any Investments in CRE Finance
Assets and Real Estate Investments), acquisition, Capital Expenditure, Capitalized Software Expenditure or repayment of Indebtedness) all or any portion of such Net Proceeds in assets useful for their business or (B) apply the Net Proceeds to
prepay amounts outstanding under any (I) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (II) CRE Financing within (x) twenty-four (24) months following receipt of such Net Proceeds or
(y) if the Borrower or any Restricted Subsidiary enters into a legally binding commitment or a signed letter of intent to reinvest such Net Proceeds within twenty-four (24) months following receipt thereof, no later than one hundred eighty
(180) days after the end of such twenty-four (24)-month period; provided that the Borrower may elect to deem expenditures that otherwise
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would be permissible reinvestments that occur prior to receipt of such Net Proceeds to have been reinvested in accordance with the provisions of this Section 2.05(2)(b)(ii) (it being
understood that such deemed expenditures shall have been made no earlier than the earliest of the determination to enter into such Asset Sale, execution of a definitive agreement for such Asset Sale and the date that is one hundred eighty
(180) days prior to consummation of such Asset Sale or Casualty Event); provided further that if any Net Proceeds are no longer intended to be or cannot be so reinvested at any time after such reinvestment election, and subject to
clauses (f) and (g) of this Section 2.05(2), an amount equal to any such Net Proceeds shall be applied within ten (10) Business Days after the Borrower reasonably determines that such Net Proceeds are no longer
intended to be or cannot be so reinvested to the prepayment of the Term Loans as set forth in this Section 2.05.
(c) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness (i) not expressly permitted to be
incurred or issued pursuant to Section 7.02 or (ii) that constitutes Other Loans or Credit Agreement Refinancing Indebtedness, in each case, incurred or issued to refinance any Class (or Classes) of Term Loans resulting in Net
Proceeds (as opposed to such Credit Agreement Refinancing Indebtedness or Other Loans arising out of an exchange of existing Term Loans for such Credit Agreement Refinancing Indebtedness or Other Loans), the Borrower shall prepay, or cause to be
prepaid, an aggregate principal amount of Term Loans of any Class or Classes (in each case, as directed by the Borrower) equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the
receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds.
(d) (i) Except as otherwise set forth in any
Refinancing Amendment, Extension Amendment or Incremental Amendment, each prepayment of Term Loans required by Sections 2.05(2)(a), (b) and (c)(i) shall be allocated to any Class of Term Loans outstanding as directed by the
Borrower, shall be applied pro rata to Term Lenders within such Class of Term Loans (subject to any “cashless roll” provision in connection with any prepayment with the proceeds of applicable Refinancing Indebtedness), based upon
the outstanding principal amounts owing to each such Term Lender under such Class of Term Loans and shall be applied to reduce such remaining scheduled installments of principal within such Class of Term Loans as directed by the Borrower
(and absent such direction, in direct order of maturity); provided that:
(A) such prepayments may not be directed
to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Incremental Term Loans, Other Term Loans, Extended Term Loans or Replacement Loans may
specify that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans);
(B) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments
may not be directed to any such Class of Term Loans without at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Incremental Term Loans, Other Term Loans, Extended Term Loans or
Replacement Loans may specify that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date); and
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(ii) each prepayment of Term Loans required by
Section 2.05(2)(c)(ii) shall be allocated to any Class or Classes of Term Loans being refinanced as directed by the Borrower and shall be applied pro rata to Term Lenders within each such Class, based upon the outstanding principal
amounts owing to each such Term Lender under each such Class of Term Loans.
(e) If for any reason the aggregate
Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations at any time exceeds the aggregate Revolving Commitments then in effect, the Borrower shall promptly prepay Revolving Loans and Swing Line Loans or Cash Collateralize the L/C
Obligations in an aggregate amount equal to 103% of such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(2)(e) unless after the prepayment in full of
the Revolving Loans and Swing Line Loans (as applicable) such aggregate Outstanding Amount of L/C Obligations exceeds the aggregate Revolving Commitments then in effect.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made
pursuant to clauses (a) through (c) of this Section 2.05(2) at least three (3) Business Days prior to the date of such prepayment (or such later date as agreed by the Administrative Agent in its sole discretion)
(provided that, in the case of clause (b) or (c) of this Section 2.05(2), the Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a
refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed). Each such notice shall specify the date of such prepayment
and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by the Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and
of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans
required to be made pursuant to clauses (a) and (b) of this Section 2.05(2) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no
later than 5:00 p.m., New York time, two (2) Business Days prior to the date of such prepayment (or such earlier date as agreed by the Administrative Agent and the Borrower). Each Rejection Notice from a given Lender shall specify the principal
amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term 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 prepayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower (or the applicable Restricted
Subsidiary) and may be applied by the Borrower to increase the Basket set forth in Section 7.05(1)(b).
(g)
Notwithstanding any other provisions of this Section 2.05(2), (i) to the extent that any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.05(2)(b) (a
“Foreign Asset Sale”), the Net Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local law from being repatriated to the United States,
an amount equal to the portion of such Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(2) (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary
to promptly take all actions reasonably required by the applicable local law to permit such repatriation) and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign
Asset Sale or Foreign Casualty Event
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would have adverse tax consequences for any Loan Party, any Loan Party’s Subsidiaries, any Parent Company or any holder of Equity Interests of any of the foregoing (taking into account any
foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Proceeds, an amount equal to the Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in
this Section 2.05(2) (each, a “Payment Block”); provided that the Borrower shall not be required to monitor any such Payment Block and/or to reserve cash for any future repatriation after the Borrower has
notified the Administrative Agent of the existence of such Payment Block.
(h) All prepayments under this
Section 2.05 (other than prepayments of Base Rate Revolving Loans that are not made in connection with the termination or permanent reduction of Revolving Commitments) shall be accompanied by all accrued interest thereon, together with,
to the extent applicable, the applicable premium payable under Section 2.18.
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 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 SOFR Loan prior to the last day of the Interest Period therefor, the Borrower may, in its discretion, deposit
an amount sufficient to make any such prepayment otherwise required to be made thereunder together with accrued interest to the last day of such Interest Period into a Cash Collateral Account until the last day of such Interest Period, at which time
the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this
Section 2.05. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan
Party) to apply such amount to the prepayment of the outstanding Loans in accordance with the relevant provisions of this Section 2.05. Such deposit shall be deemed to be a prepayment of such Loans by the Borrower for all
purposes under this Agreement.
SECTION 2.06 Termination or Reduction of Commitments.
(1) Optional. The Borrower may, upon written notice by the Borrower to the Administrative Agent, terminate the unused Commitments of
any Class, or from time to time permanently reduce the unused Commitments of any Class, in each case without premium or penalty; provided that, unless otherwise agreed between the Administrative Agent and the Borrower,
(a) any such notice shall be received by the Administrative Agent three (3) Business Days prior to the date of termination
or reduction,
(b) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of
$500,000 in excess thereof or, if less, the entire amount thereof,
(c) the Revolving Commitments of any
Class shall not be reduced to an amount that is less than the aggregate Revolving Exposure at such time with respect to such Class, and
(d) if, after giving effect to any reduction of the Commitments, the L/C Sublimit or Swing Line Sublimit exceeds the amount of
the Revolving Facility, the L/C Sublimit or the Swing Line Sublimit, as applicable, shall be automatically reduced by the amount of such excess.
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Except as provided above, the amount of any such Revolving Commitment reduction shall not be applied to the
L/C Sublimit or Swing Line Sublimit unless otherwise specified by the Borrower. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of any Commitments if such termination would have resulted from a
refinancing of all of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed.
(2) Mandatory. The Closing Date Term Loan Commitment of each Term Lender on the Closing Date shall be automatically and permanently
reduced to $0 upon the making of such Lender’s Closing Date Term Loans to the Borrower pursuant to Section 2.01(1). The Revolving Commitment of each Revolving Lender shall automatically and permanently terminate on the Maturity
Date for the applicable Revolving Facility.
(3) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Appropriate Lenders of any termination or reduction of unused portions of the L/C Sublimit or the Swing Line Sublimit or the unused Commitments of any Class under this Section 2.06. Upon any reduction of
unused Commitments of any Class, the Commitment of each Lender of such Class shall be reduced on a pro rata basis (determined on the basis of the aggregate Commitments under such Class) (other than the termination of the Commitment of any
Lender as provided in Section 3.07). Any commitment fees accrued until the effective date of any termination of the Revolving Commitments shall be paid on the effective date of such termination.
SECTION 2.07 Repayment of Loans.
(1) Term Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (a) on the
last Business Day of each March, June, September and December, commencing with the last Business Day of December 2026, an aggregate principal amount equal to the Closing Date Term Loan Amortization Percentage of the aggregate principal amount of all
Closing Date Term Loans outstanding on the Closing Date (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05) and (b) on the Maturity Date
for the Closing Date Term Loans, the aggregate principal amount of all Closing Date Term Loans outstanding on such date. In connection with any Incremental Term Loans that constitute part of the same Class as any existing Class of Term
Loans, the Borrower and the Administrative Agent shall be permitted to adjust the rate of prepayment in respect of such Class such that the Term Lenders holding Term Loans comprising part of such Class continue to receive a payment that is
not less than the same Dollar amount that such Term Lenders would have received absent the incurrence of such Incremental Term Loans; provided, that if such Incremental Term Loans are to be “fungible” with any existing
Class of Term Loans, notwithstanding any other conditions specified in this Section 2.07(1), the amortization schedule for such “fungible” Incremental Term Loan may provide for amortization in such other percentage(s) to
be agreed by the Borrower and the Administrative Agent to provide that the Incremental Term Loans will be (or will be deemed to be) “fungible” with the applicable existing Class of Term Loans.
(2) Revolving Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders on the
Maturity Date for the applicable Revolving Facility the aggregate principal amount of all Revolving Loans under such Facility outstanding on such date.
(3) Swing Line Loans. The Borrower shall repay the aggregate principal amount of each Swing Line Loan on the Maturity Date for the
applicable Revolving Facility.
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SECTION 2.08 Interest.
(1) Subject to the provisions of Section 2.08(2), (a) 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, (b) 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 (c) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a
rate per annum equal to the Base Rate, plus the Applicable Rate with respect to Revolving Loans.
(2) During the continuance
of an Event of Default under Section 8.01(1), the Borrower shall pay interest on past due amounts (including unpaid interest on such past due amounts) hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws; provided that no interest at the Default Rate shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. Accrued and unpaid interest
on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(3) 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.
(1) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender under the Revolving
Facility in accordance with its Applicable Percentage, a commitment fee equal to the applicable Commitment Fee Rate times the actual daily amount by which the aggregate Revolving Commitments exceed the sum of (a) the Outstanding Amount of
Revolving Loans (for the avoidance of doubt, excluding any Swing Line Loans) and (b) the Outstanding Amount of L/C Obligations; provided that any commitment fee accrued with respect to any of the Commitments of a Defaulting Lender under
such Revolving Facility during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent that such
commitment fee shall otherwise have been due and payable by the Borrower prior to such time; and provided further that no commitment fee shall accrue on any of the Commitments under any Revolving Facility of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender. The commitment fee on each Revolving Commitment shall accrue at all times from the Closing Date (or date of initial effectiveness, as applicable) (and for the avoidance of doubt, the commitment fee on the
Revolving Commitment under the Closing Date Revolving Facility shall accrue from the Closing Date) until the Maturity Date for the applicable Revolving Commitment, 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 of March, June, September and December, commencing with June 30, 2026 and on the Maturity Date for such Revolving Facility. The commitment fee shall
be calculated quarterly in arrears, and if there is any change in the Commitment Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Commitment Fee Rate separately for each period during such quarter that
such Commitment Fee Rate was in effect.
(2) Other Fees. The Borrower shall pay to the Agents such administration fees as shall
have been separately agreed upon in the Fee Letter in the amounts and at the times so specified.
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SECTION 2.10 Computation of Interest and Fees. All computations of interest for
Base Rate Loans shall be made on the basis of a year of 365 days or 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 360-day
year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that
is repaid on the same day on which it is made shall, subject to Section 2.12(1), bear interest for one 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.
(1) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by
one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as a
non-fiduciary agent for the Borrower pursuant to Section 10.07(3), in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender
shall be prima facie evidence absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit
or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent, as set forth in the Register, in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and record thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(2) In addition to the accounts and
records referred to in Section 2.11(1), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records and, in the case of the Administrative Agent, entries in the Register, evidencing
the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
(3) Entries
made in good faith by the Administrative Agent in the Register pursuant to Sections 2.11(1) and (2), and by each Lender in its account or accounts pursuant to Sections 2.11(1) and (2), shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan
Documents, absent manifest error.
SECTION 2.12 Payments Generally.
(1) All payments to be made by the Borrower hereunder shall be made in Dollars without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office for payment and in Same Day Funds not later than 2:00 p.m., New York time, on the date specified herein. Upon receipt of all requested funds, the Administrative Agent will promptly distribute to each Appropriate
Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any payments under this Agreement that are made later than 2:00 p.m., New York
time, may be deemed to have been made on the next succeeding Business Day (but the Administrative Agent may extend such deadline for purposes of computing interest and fees (but not beyond the end of such day) in its sole discretion whether or not
such payments are in process).
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(2) Except as otherwise expressly provided herein, if any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(3) Except as otherwise expressly provided herein, unless the Borrower or any Lender has notified the Administrative Agent, prior to the date,
or in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m., New York time, on the date of such Borrowing, any payment is required to be made by it to the Administrative Agent hereunder (in the case of the Borrower, for the account of any
Lender or an Issuing Bank hereunder or, in the case of the Lenders, for the account of any Issuing Bank, Swing Line Lender or the Borrower hereunder), that the Borrower or such Lender, as the case may be, will not make such payment, the
Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(a) if
the Borrower failed to make such payment, each Lender or Issuing Bank shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender or Issuing Bank in Same Day Funds, together
with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender or Issuing Bank to the date such amount is repaid to the Administrative Agent in Same Day Funds at the
Overnight Rate from time to time in effect; and
(b) if any Lender failed to make such payment, such Lender shall forthwith
on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate from time to time in effect. 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 Borrower, and the Borrower shall pay such amount, or cause such amount to be paid, to the
Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this Section 2.12(3) shall be conclusive, absent manifest error.
(c) If any
Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the
applicable Credit Extension set forth in Section 4.02 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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(d) 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 fund any 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.
(e) 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.
(f) 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 8.03 (or otherwise expressly set forth herein). 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 Pro Rata Share of the sum of (i) the Outstanding Amount of all Loans outstanding at such time and (ii) 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. Other than as expressly provided elsewhere herein, if any Lender of any Class shall obtain payment in respect of any principal of or interest on account of the Loans of such Class made by it or the
participations in L/C Obligations and Swing Line Loans held by it (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 (1) notify the Administrative Agent of such fact and (2) purchase from the other Lenders such participations in the Loans of such Class made by them or such sub-participations
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 any principal of or interest on such Loans of such
Class or such participations, as the case may be, pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price
paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (a) the amount of such paying Lender’s required repayment to (b) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. For the avoidance of doubt, the provisions of this Section 2.13
shall not be construed to apply to (i) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement as in effect from time to time (including the application of funds arising from the existence of a
Defaulting Lender) or (ii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant permitted hereunder. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.13 may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of
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setoff, but subject to Section 10.10) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with
respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased. For purposes of clause (3) of the definition of “Excluded Taxes”,
any participation acquired by a Lender pursuant to this Section 2.13 shall be treated as having been acquired on the earlier date(s) on which the applicable interest(s) in the Commitment(s) or Loan(s) to which such participation relates
were acquired by such Lender.
SECTION 2.14 Incremental Facilities.
(1) Incremental Loan Request. The Borrower may at any time and from time to time after the Closing Date, by notice to the
Administrative Agent (an “Incremental Loan Request”), request, on behalf of the Borrower or any Subsidiary Guarantor (a) one or more new commitments which may be of the same Class as any outstanding Term Loans (a
“Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (b) one or more increases in the amount of the Revolving
Commitments (a “Revolving Commitment Increase”) or the establishment of one or more new Classes of revolving credit commitments (each, an “Incremental Revolving Facility”; and, collectively with any Revolving
Commitment Increases, the “Incremental Revolving Commitments”; and any Incremental Revolving Commitments, collectively with any Incremental Term Commitments, the “Incremental Commitments”), whereupon the
Administrative Agent shall promptly deliver a copy to each of the Lenders. Each Incremental Loan Request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental
Term Commitments or Incremental Revolving Commitments.
(2) Incremental Loans. Any Incremental Term Loans or Incremental Revolving
Commitments effected through the establishment of one or more new term loans or new revolving credit commitments, as applicable, made on an Incremental Facility Closing Date (other than a Loan Increase) shall be designated a separate Class of
Incremental Term Loans or Incremental Revolving Commitments, as applicable, for all purposes of this Agreement. On any Incremental Facility Closing Date on which any Incremental Term Commitments of any Class are effected (including through any
Term Loan Increase), subject to the satisfaction of the terms and conditions in this Section 2.14, (a) each Incremental Term Lender of such Class shall make a Loan to the borrower(s) thereof (an “Incremental Term
Loan”) in an amount equal to its Incremental Term Commitment of such Class and (b) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Commitment of such
Class and the Incremental Term Loans of such Class made pursuant thereto. On any Incremental Facility Closing Date on which any Incremental Revolving Commitments of any Class are effected through the establishment of one or more new
Classes of revolving credit commitments, subject to the satisfaction of the terms and conditions in this Section 2.14, (a) each Incremental Revolving Lender of such Class shall make its Commitment available to the borrower(s)
thereof (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Commitment of such Class and
(b) each Incremental Revolving Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto. On
any Incremental Facility Closing Date on which any Revolving Commitment Increase is effected, subject to the satisfaction of the terms and conditions in this Section 2.14, (a) the adjustments set forth in Section 2.14(8)
shall be made and (b) each Incremental Revolving Lender in respect thereof shall become a Lender hereunder with respect to the Incremental Revolving Commitment of such Class and the Incremental Revolving Loans of such Class made
pursuant thereto.
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(3) Incremental Lenders. Incremental Term Loans may be made, and Incremental
Revolving Commitments may be provided, by any existing Lender approved by the Borrower (but no existing Lender will have an obligation to make any Incremental Commitment (or Incremental Loan), nor will the Borrower have any obligation to approach
any existing Lenders to provide any Incremental Commitment (or Incremental Loan)) or by any Additional Lender (each such existing Lender or Additional Lender providing such Loan or Commitment, an “Incremental Term Lender” or
“Incremental Revolving Lender”, as applicable, and, collectively, the “Incremental Lenders”); provided that (a) the Administrative Agent (in its capacities as both Administrative Agent and Collateral
Agent) shall not be required as a condition to effectiveness to execute, accept or acknowledge any Incremental Amendment, but shall receive concurrent, substantially concurrent or prompt written notice thereof, (b) in the case of any
Incremental Revolving Commitments only, each Swing Line Lender and each Issuing Bank, shall have consented (in each case, not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s making such Incremental Term Loans
or providing such Incremental Revolving Commitments to the extent such consent, if any, would be required under Section 10.07(2) for an assignment of Loans or Revolving Commitments, as applicable, to such Additional Lender, (c) with
respect to Incremental Term Commitments, any Affiliated Lender providing an Incremental Term Commitment shall be subject to the same restrictions set forth in Section 10.07(8) as they would otherwise be subject to with respect to any
purchase by or assignment to such Affiliated Lender of Term Loans and (d) Affiliated Lenders may not provide Incremental Revolving Commitments.
(4) Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the availability of any initial credit
extensions thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(a) (i) no Event of Default shall exist after giving effect to such Incremental Commitments (provided that, with respect to any
Incremental Amendment in connection with a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(i) shall be, subject to Section 1.07(11), the absence of any Event of Default under
Section 8.01(1) or, with respect to the Borrower, Section 8.01(6)) and (ii) the Specified Representations of the Borrower shall be true and correct in all material respects on and as of the date of such Incremental
Amendment (provided that, (A) if any Specified Representation specifically refers to an earlier date or period, such Specified Representation shall be true and correct in all material respects as of such earlier date, (B) if any Specified
Representation is qualified as to “materiality”, “Material Adverse Effect” or similar term of qualification, such Specified Representation shall be true and correct (after giving effect to any qualification therein) in all
respects on such respective dates and (C) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the date of initial funding of such Incremental Facility); provided that (x) in
connection with a Limited Condition Transaction, the conditions set forth in the foregoing clauses (i) and (ii) above shall be tested (if applicable) solely on the applicable LCT Test Date as selected by the Borrower pursuant to
Section 1.07(11) and (y) except as set forth in this clause (a), there shall be no requirement to satisfy any of the conditions in Section 4.02 (including the absence of any Default or the bring down of any representations
(other than those set forth in this clause (a))) unless otherwise required to be satisfied to the extent requested by the Incremental Lenders providing more than 50.0% of the applicable Incremental Commitments;
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(b) each Incremental Term Commitment shall be in an aggregate principal
amount that is not less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5,000,000 (or such lesser amount) if such amount represents all remaining
availability under the limit set forth in clause (c) of this Section 2.14(4)) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 (or such lesser amount to
which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5,000,000 (or such lesser amount) if such amount represents all remaining availability under the limit set forth in clause (c) of
Section 2.14(4));
(c) the aggregate principal amount of Incremental Term Loans and Incremental Revolving
Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount available under clauses (i) through (iii) below, the “Available
Incremental Amount”):
(i) the sum of (A) (I) the greater of (x) $45,000,000 and (y) 1.00% of Total
Assets for the most recently ended Test Period (calculated on a pro forma basis) (the amount under this subclause (I), the “Free and Clear Incremental Amount”) less (II) the aggregate principal amount of
Permitted Incremental Equivalent Debt incurred under the Free and Clear Incremental Amount, plus (B) (I) any General Debt Basket Reallocated Amount and (II) any General Liens Basket Reallocated Amount, plus (C) the
aggregate principal amount, without duplication, of (I) voluntary prepayments, redemptions or repurchases (including any reduction in the outstanding principal amount resulting from assignments to, or purchases by, or purchases and
contributions to, the Borrower or any Restricted Subsidiary) of (1) Closing Date Term Loans, any Incremental Term Loans, any Permitted Incremental Equivalent Debt and any other Indebtedness of the Borrower or its Restricted Subsidiaries that is
secured by the Collateral on a pari passu basis with the First Lien Obligations (without regard to the control of remedies) and/or (2) without duplication of the foregoing sub-clause (1),
any Incremental Term Loans, any Permitted Incremental Equivalent Debt and any other Indebtedness of the Borrower or its Restricted Subsidiaries, in each case incurred or established under the Free and Clear Incremental Amount, (II) voluntary
permanent commitment reductions in respect of (1) the Closing Date Revolving Facility and/or (2) any Incremental Revolving Commitments or any other revolving credit facility, in each case either (x) established under the Free and
Clear Incremental Amount or (y) secured by the Collateral on a pari passu basis with the First Lien Obligations (without regard to the control of remedies) and (III) voluntary prepayments, redemptions or repurchases (including any
prepayment, redemption or repurchase utilizing Section 3.07 and any reduction in the outstanding principal amount resulting from assignments to, or purchases by, or purchases and contributions to, the Borrower or any Restricted
Subsidiary) (or, in the case of revolving credit facilities, voluntary permanent commitment reductions) of any Refinancing Indebtedness previously applied to the repayment of any Indebtedness described in the preceding Sections
2.14(4)(c)(i)(A) and (B) (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this Section 2.14(4)(c)(i)(C) shall not have been funded with proceeds of long-term Indebtedness
(other than (i) revolving Indebtedness or (ii) intercompany loans)) (the amounts under this Section 2.14(4)(c)(i)(C), collectively, the “Prepayment Incremental Amount”), plus
(ii) (A) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or
refinance, the Closing Date Term Loans, the Closing Date Revolving Facility and/or any other Incremental Loans or Incremental Commitments secured by Liens on the Collateral on a pari passu basis with the First Lien Obligations, an amount
equal to the portion of the Closing Date Term Loans, the Closing Date Revolving Facility and/or any other Incremental Loans or Incremental Commitments, as applicable, to be replaced with (or refinanced by) such Incremental
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Loans or Incremental Commitments and (B) in the case of any Incremental Loans or
Incremental Commitments that effectively replace any Commitment or Loan under any Facility that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Commitment
or Loan (the amounts under this clause (B), together with the amounts under clause (A) above, collectively, the “Non-Ratio Based Incremental Amount”), plus
(iii) an unlimited amount (the amounts under this clause (iii), collectively, the “Ratio Based Incremental
Amount”), so long as in the case of this clause (iii) only,
(A) in the case of Incremental Loans or
Incremental Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the Closing Date Term Loans (but without regard to the control of remedies), after
giving pro forma effect to the incurrence or issuance of the then-proposed Incremental Loans or Incremental Commitments, the Senior Debt to Total Assets Ratio does not exceed, at the election of the Borrower, either (I) 80.0% or (II) to the
extent such Incremental Loans or Incremental Commitments are incurred in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the Senior Debt to Total Assets Ratio for the Test Period most recently ended
immediately prior to giving effect to such incurrence or establishment of Incremental Loans or Incremental Commitments; provided that, (x) in the case of an incurrence of Incremental Revolving Commitments, for purposes of determining capacity
under, and compliance with the terms of, this Section 2.14, all of such Incremental Revolving Commitment then being established shall be deemed fully drawn and such capacity and compliance shall be tested at the time such Incremental
Revolving Commitment becomes effective and any subsequent borrowing under such facility shall not constitute an additional incurrence of Incremental Commitments or Incremental Term Loans for purposes of this Section 2.14 and (y) the
Senior Debt to Total Assets Ratio shall be calculated without netting the cash proceeds from such Incremental Loans then proposed to be incurred, or
(B) in the case of Incremental Loans or Incremental Commitments that are (I) secured by Liens on all or a portion of the
Collateral on a basis that is junior in priority to the Liens on the Collateral securing Closing Date Term Loans or (II) unsecured or not secured by assets that constitute Collateral, after giving pro forma effect to the incurrence or issuance
of the then-proposed Incremental Loans or Incremental Commitments, the Total Debt to Total Assets Ratio does not exceed, at the election of the Borrower, either (x) 82.0% or (y) to the extent such Incremental Loans or Incremental Commitments
are incurred in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the Total Debt to Total Assets Ratio for the Test Period most recently ended immediately prior to giving effect to such incurrence or
establishment of Incremental Loans or Incremental Commitments; provided that, (1) in the case of an incurrence of Incremental Revolving Commitments, for purposes of determining capacity under, and compliance with the terms of, this
Section 2.14, all of such Incremental Revolving Commitment then being established shall be deemed fully drawn and such capacity and compliance shall be tested at the time such Incremental Revolving Commitment becomes effective and any
subsequent borrowing under such facility shall not constitute an additional incurrence of Incremental Commitments or Incremental Term Loans for purposes of this Section 2.14 and (2) the Total Debt to Total Assets Ratio shall be
calculated without netting the cash proceeds from such Incremental Loans then proposed to be incurred).
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The Borrower may elect to use clause (iii) of the definition of Available
Incremental Amount regardless of whether the Borrower has capacity under clauses (i) or (ii) of the definition of Available Incremental Amount. Further, the Borrower may elect to use clause (iii) of the definition of
Available Incremental Amount prior to using clauses (i) or (ii) of the definition of Available Incremental Amount, and if both clause (iii) and clauses (i) or (ii) of the definition of Available
Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Amount. In addition, any Indebtedness originally
designated as incurred pursuant to clauses (i) or (ii) of the definition of Available Incremental Amount shall be automatically reclassified as incurred under clause (iii) of the definition of Available Incremental
Amount at such time as the Borrower would satisfy the applicable leverage-based incurrence test at such time on a pro forma basis, unless otherwise elected by the Borrower.
In the case of any Incremental Commitment in respect of a delayed draw term loan facility, for purposes of determining capacity under, and
compliance with the terms of, this Section 2.14, all or any portion of such Incremental Commitment may, at the election of the Borrower, be (1) deemed to be fully drawn, and such capacity and compliance shall be tested, at the time
such Incremental Commitment becomes effective, in which case subsequent borrowings under such facility shall not constitute an additional incurrence of Incremental Commitments or Incremental Term Loans for purposes of this Section 2.14
unless required by the Incremental Lenders providing more than 50% of such Incremental Commitments, (2) if in connection with any Limited Condition Transaction, deemed to be drawn in any amount determined by the Borrower on any date that could
constitute an LCT Test Date, in which case the subsequent borrowing of such amount pursuant to such Incremental Commitment shall not constitute an additional incurrence of Incremental Commitments or Incremental Term Loans for purposes of this
Section 2.14 or (3) deemed incurred as and when funded in accordance with the terms of such delayed draw term loan facility; provided, however, that, if compliance is not tested at the time of establishing the commitment, the
lenders in respect of such delayed draw term loan facility shall be included in the calculation of the Required Lenders and the components thereof solely to the extent the Borrower and such lenders are acting in good faith to establish an
Incremental Facility for a bona fide business purpose (as determined in good faith by the Borrower) and not directly or indirectly for the purpose of circumventing any voting requirements either at the time of establishment or any future date (as
determined in good faith by the Borrower).
(5) Required Terms. The terms, provisions and documentation of the Incremental Term
Loans and Incremental Term Commitments or the Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be, of any Class and any Loan Increase shall be as agreed between the Borrower and the applicable Incremental
Lenders providing such Incremental Commitments; provided that in the case of a Term Loan Increase or a Revolving Commitment Increase, the terms, provisions and documentation of such Term Loan Increase or a Revolving Commitment Increase shall
be identical (other than with respect to upfront fees, OID or similar fees, it being understood that, if required to consummate such Loan Increase transaction, the interest rate margins and rate floors may be increased, any call protection provision
may be made more favorable to the applicable existing Lenders and additional upfront or similar fees may be payable to the lenders providing the Loan Increase) to the applicable Term Loans or Revolving Commitments being increased, in each case, as
existing on the Incremental Facility Closing Date (provided that, if such Incremental Term Loans are intended to be “fungible” with any existing Class of Term Loans, notwithstanding any other conditions specified in this
Section 2.14(5), the amortization schedule for such “fungible” Incremental Term Loan may provide for amortization in such other percentage(s) to be agreed by the Borrower and the Administrative Agent to provide that such
Incremental Term Loans will be (or will be deemed to be) “fungible” with such Class of Term Loans). In addition:
(a) the Incremental Term Loans:
(i) (A) shall rank equal or junior in priority in right of payment with the First Lien Obligations under this Agreement and
(B) shall either (I) rank equal (but without regard to the control of remedies) or junior in priority of right of security with the First Lien Obligations under this Agreement and shall, if junior, be subject to a First Lien/Second Lien
Intercreditor Agreement or (II) be unsecured, in each case as applicable pursuant to Section 2.14(4)(c) above,
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(ii) shall not mature earlier than the Original Term Loan Maturity Date
(other than in the case of any Permitted Earlier Maturity Debt),
(iii) shall have a Weighted Average Life to Maturity not
shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans on the date of incurrence of such Incremental Term Loans (without giving effect to any amortization or prepayments of the Closing Date Term Loans) (other
than in the case of any Permitted Earlier Maturity Debt),
(iv) subject to clauses (ii) and (iii) above,
shall have amortization and an Applicable Rate determined by the Borrower and the applicable Incremental Term Lenders; provided, that if such Incremental Term Loans are intended to be “fungible” with any existing Class of
Term Loans notwithstanding any other conditions specified in this Section 2.14(5)(a), the amortization schedule for such “fungible” Incremental Term Loan may provide for amortization in such other percentage(s) to be agreed
by the Borrower and the Administrative Agent to provide that the Incremental Term Loans will be (or will be deemed to be) “fungible” with such Class of Term Loans,
(v) may participate (A) in any voluntary prepayments on a pro rata basis, greater than a pro rata basis or less than pro
rata basis and (B) in any mandatory prepayments on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Term Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness
(including Replacement Notes) or any Incremental Term Facility incurred in reliance on the Prepayment Incremental Amount), or less than pro rata basis, in each case, with the Closing Date Term Loans, as specified in the applicable Incremental
Amendment,
(vi) shall be denominated in Dollars or, subject to the consent of the Administrative Agent (not to be
unreasonably withheld, delayed or conditioned), another currency as determined by the Borrower and the applicable Incremental Term Lenders,
(vii) shall not at any time be guaranteed by any Restricted Subsidiary of the Borrower other than Restricted Subsidiaries that
are Guarantors,
(viii) in the case of Incremental Term Loans that are secured, the obligations in respect thereof shall
not be secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral, and
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(ix) to the extent not consistent with the Closing Date Term Loans existing
on the Incremental Facility Closing Date, shall, at the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the time of incurrence thereof (including, for the avoidance of doubt, at the time of entering into
any definitive documentation with respect to such Indebtedness or the applicable LCT Test Date) as determined by the Borrower in good faith, (B) be not materially more restrictive to the Borrower (as determined by the Borrower in good faith),
when taken as a whole, than the terms of the Closing Date Term Loans, except, in each case under this clause (B), with respect to (I) covenants (including any Previously Absent Financial Maintenance Covenant) and other terms applicable
to any period after the Latest Maturity Date of the Closing Date Term Loans, in effect immediately prior to the incurrence of the Incremental Term Loans and Incremental Term Commitments or (II) a Previously Absent Financial Maintenance Covenant
(so long as, to the extent that any such terms of any Incremental Term Loans contain a Previously Absent Financial Maintenance Covenant that is in effect prior to the applicable Latest Maturity Date of the Closing Date Term Loans, such Previously
Absent Financial Maintenance Covenant shall be included for the benefit of the Closing Date Term Loans) or (C) contain such terms, provisions and documentation as are reasonably satisfactory to the Administrative Agent (provided that, at
the Borrower’s election, to the extent any term or provision is added for the benefit of the Lenders of Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such term or provision
is also added, or the features of such term or provision are provided, for the benefit of the Lenders of the Closing Date Term Loans);
provided that Incremental Term Loans may be incurred in the form of a bridge or other interim credit facility intended to be refinanced
or replaced with long term Indebtedness (so long as such credit facility includes customary “rollover provisions” that satisfy the requirements of clauses (ii) and (iii) above following such rollover), in which case,
on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, clauses (ii), (iii) and (iv) above shall not prohibit the inclusion of customary terms for “bridge”
facilities, including customary mandatory prepayment, repurchase or redemption provisions;
(b) the Incremental Revolving
Commitments and Incremental Revolving Loans:
(i) (A) shall rank equal in priority in right of payment with the First Lien
Obligations under this Agreement and (B) shall either (I) rank equal (but without regard to the control of remedies) or junior in priority of right of security with the Closing Date Revolving Facility under this Agreement and, if junior,
shall be subject to a First Lien/Second Lien Intercreditor Agreement and or (II) be unsecured, in each case as applicable pursuant to Section 2.14(4)(c) above,
(ii) shall not mature earlier than the Original Revolving Facility Maturity Date (other than in the case of any Permitted
Earlier Maturity Debt), and shall not be subject to amortization,
(iii) except as set forth in clause
(v) below, shall provide that the borrowing and repayment (other than permanent repayment) of Revolving Loans with respect to Incremental Revolving Commitments after the associated Incremental Facility Closing Date may be made on a pro rata
basis, less than a pro rata basis or greater than a pro rata basis with the Closing Date Revolving Facility,
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(iv) subject to the provisions of Section 2.03(12) and
2.04(7) in connection with Letters of Credit and Swing Line Loans, respectively, which mature or expire after a Maturity Date at any time Incremental Revolving Commitments with a later Maturity Date are outstanding, shall provide that all
Letters of Credit and Swing Line Loans shall be participated on a pro rata basis by each Lender with a Revolving Commitment in accordance with its percentage of the Revolving Commitments existing on the Incremental Facility Closing Date (and except
as provided in Sections 2.03(12) and 2.04(7), without giving effect to changes thereto on an earlier Maturity Date with respect to Letters of Credit and Swing Line Loans theretofore incurred or issued),
(v) shall provide that the permanent repayment of Revolving Loans in connection with a termination of Incremental Revolving
Commitments after the associated Incremental Facility Closing Date may be made on a pro rata basis or less than a pro rata basis (or greater than a pro rata basis (A) with respect to (I) repayments required upon the Maturity Date of
any Incremental Revolving Commitments and (II) repayments made in connection with any refinancing of Incremental Revolving Commitments or (B) as compared to any other Revolving Commitments with a later maturity date than such Incremental
Revolving Commitments), in each case, with the Closing Date Revolving Facility,
(vi) shall provide that assignments and
participations of Incremental Revolving Commitments and Incremental Revolving Loans shall be governed by the same assignment and participation provisions applicable to the Closing Date Revolving Facility,
(vii) shall provide that any Incremental Revolving Commitments may constitute a separate Class or Classes, as the case may
be, of Commitments from the Classes constituting the applicable Revolving Commitments prior to the Incremental Facility Closing Date,
(viii) shall have an Applicable Rate determined by the Borrower and the applicable Incremental Revolving Lenders,
(ix) shall be denominated in Dollars or, subject to the consent of the Administrative Agent (not to be unreasonably withheld,
delayed or conditioned), another currency as determined by the Borrower and the applicable Incremental Revolving Lenders,
(x) shall not at any time be guaranteed by any Restricted Subsidiary of the Borrower other than Restricted Subsidiaries that
are Guarantors, and
(xi) in the case of Incremental Revolving Commitments and Incremental Revolving Loans that are
secured, the obligations in respect thereof shall not be secured by any property or assets of the Borrower or any Restricted Subsidiary other than the Collateral;
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provided that Incremental Revolving Commitments and Incremental
Revolving Loans may be incurred in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long term indebtedness (so long as such credit facility includes customary “rollover provisions” that
satisfy the requirements of clause (ii) above following such rollover), in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other credit facility, clause (ii) above shall not
prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions;
provided further that on the date of effectiveness of any Incremental Revolving Commitments, the L/C Sublimit and/or
Swing Line Sublimit, as applicable, shall increase by an amount, if any, agreed upon by the Administrative Agent, the Borrower and the relevant Issuing Banks and/or Swing Line Lenders, as applicable.
(c) the Applicable Rate and fees applicable to the Incremental Term Loans of each Class shall be determined by the
Borrower and the applicable Incremental Term Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that with respect to any Incremental Term Loan in a principal amount in excess of the greater of (i) $90,000,000
and (ii) 2.0% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) (the “MFN Threshold”) that (A) is secured by Liens on the Collateral and ranks equal in priority of right of
security with the Closing Date Term Loans (but without regard to the control of remedies) and ranks pari passu in right of payment with the First Lien Obligations under this Agreement, (B) is in the form of broadly syndicated floating rate
Dollar-denominated term loans (other than term “A” loans), (C) has a final maturity date on or prior to the Original Term Loan Maturity Date, (D) is made prior to the six (6) month anniversary of the Closing Date and
(E) is not incurred or established in connection with a Permitted Acquisition or other Investment permitted under this Agreement or to refinance any Indebtedness originally incurred for such purposes (each of the foregoing sub-clauses (A) through (E), collectively, the “MFN Conditions”), the Applicable Rate (it being understood for purposes of this clause (c) that Applicable Rate shall be
deemed to solely include the applicable margin in excess of each applicable index rate and shall not, for the avoidance of doubt, include any OID, upfront fees, index rate floors or any other fees (including, without limitation, arrangement fees,
structuring fees, commitment fees, underwriting fees, success fees, advisory fees, ticking fees, consent fees or amendment fees) for such Incremental Term Loans) applicable to such Incremental Term Loans shall not be greater than the Applicable Rate
payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Closing Date Term Loans, plus 100 basis points per annum unless the Applicable Rate with respect to the Closing Date Term Loans is
increased so as to cause the then Applicable Rate then applicable under this Agreement on the Closing Date Term Loans to equal the Applicable Rate then applicable to the Incremental Term Loans, minus 100 basis points per annum (this proviso, the
“MFN Provision”).
(6) Incremental Amendment. Commitments in respect of Incremental Term Loans and
Incremental Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment of the same Class as an existing Revolving Commitment to be provided by an existing Revolving Lender, an increase in such
Lender’s applicable Revolving Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each
Incremental Lender providing such Incremental Commitments and the Administrative Agent.
(7) Notwithstanding anything to the contrary in
Section 10.01, (a) each Incremental Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14, including to effect technical and corresponding amendments to this Agreement and the other Loan
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Documents and (b) at the option of the Borrower in consultation with the Administrative Agent, incorporate terms that would be favorable to existing Lenders of the applicable Class or
Classes for the benefit of such existing Lenders of the applicable Class or Classes (including to the extent necessary or advisable to allow any Class of Incremental Commitments to be a Loan Increase), in each case under this clause
(b), so long as the Administrative Agent reasonably agrees that such modification is favorable to the applicable Lenders. In connection with any Incremental Amendment, the Borrower shall, if reasonably requested by the Administrative Agent,
deliver customary reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Loans are provided with the benefit of the applicable
Loan Documents. The Borrower may use the proceeds (if any) of the Incremental Loans for any purpose not prohibited by this Agreement.
(8)
Reallocation of Revolving Exposure. Upon any Incremental Facility Closing Date on which Incremental Revolving Commitments are effected through an increase in the Revolving Commitments with respect to any existing Revolving Facility pursuant
to this Section 2.14, (a) each of the Revolving Lenders under such Facility shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the
principal amount thereof, such interests in the Revolving Loans outstanding on such Incremental Facility Closing Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held
by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each
Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with
respect to the Incremental Revolving Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements in Section 2.02 and 2.05(1) of this Agreement shall
not apply to the transactions effected pursuant to the immediately preceding sentence.
(9) This Section 2.14 shall supersede
any provisions in Section 2.12, 2.13 or 10.01 (other than the second proviso to Section 10.01(1)(j)) to the contrary. For the avoidance of doubt, any of the provisions of this Section 2.14 may be
amended with the consent of the Required Lenders (or the applicable Required Facility Lenders, if applicable).
SECTION 2.15
Refinancing Amendments.
(1) At any time after the Closing Date, the Borrower may obtain, from any Lender or any Additional Lender
(it being understood that (a) no Lender shall be required to provide any Other Loan without its consent, (b) Affiliated Lenders may not provide Other Revolving Commitments and (c) Other Term Loans provided by Affiliated Lenders shall
be subject to the limitations set forth in Section 10.07(8)), Other Loans to refinance all or any portion of the applicable Class or Classes of Loans then outstanding under this Agreement which will be made pursuant to Other Term
Loan Commitments, in the case of Other Term Loans, and pursuant to Other Revolving Commitments, in the case of Other Revolving Loans, in each case pursuant to a Refinancing Amendment; provided that such Other Loans and Other Revolving
Commitments (i) shall rank equal in priority in right of payment with the other Loans and Commitments hereunder, (ii) shall be unsecured or rank pari passu (without regard to the control of remedies) or junior in right of
security with any First Lien Obligations under this Agreement and, if secured by Liens on the Collateral on a junior basis, shall be subject to an applicable Intercreditor Agreement(s), (iii) if secured, shall not be secured by any property or
assets of the Borrower or any Restricted Subsidiary other than the Collateral, (iv) shall not at any time be guaranteed by any Restricted Subsidiary of the Borrower other than Restricted Subsidiaries that are Guarantors, (v) (A) shall have
interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment
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terms and premiums as may be agreed by the Borrower and the lenders thereof and/or (B) may provide for additional fees and/or premiums payable to the lenders providing such Other Loans in
addition to any of the items contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Refinancing Amendment, (vi) may have optional prepayment terms (including call protection and prepayment
terms and premiums) as may be agreed between the Borrower and the lenders thereof, (vii) other than in the case of any Permitted Earlier Maturity Debt, at the time of incurrence thereof, will have a final maturity date no earlier than the Term
Loans or Revolving Commitments being refinanced and, in the case of Other Term Loans, will have a Weighted Average Life to Maturity equal to or greater than the then-remaining Weighted Average Life to Maturity of the Term Loans being refinanced and
(viii) will have such other terms and conditions (other than as provided in foregoing clauses (ii) through (vii)) that, at the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the
time of incurrence or issuance (including, for the avoidance of doubt, at the time of entering into any definitive documentation with respect to such Indebtedness or, if in connection with a Limited Condition Transaction, the applicable LCT Test
Date) as determined by the Borrower in good faith, (B) if otherwise not consistent with the terms of such Class of Loans or Commitments being refinanced, not be materially more restrictive to the Borrower (as determined by the Borrower in
good faith), when taken as a whole, than the terms of such Class of Loans or Commitments being refinanced, except, in each case under this clause (B), with respect to (I) covenants and other terms applicable to any period after the
Latest Maturity Date of the Term Loans or Revolving Commitments being refinanced or (II) a Previously Absent Financial Maintenance Covenant (so long as, (1) to the extent that any such terms of any Other Terms Loans contain a Previously
Absent Financial Maintenance Covenant that is in effect prior to the Latest Maturity Date of the Closing Date Term Loans, such Previously Absent Financial Maintenance Covenant shall be included for the benefit of the Closing Date Term Loans and
(2) to the extent that any such terms of any Other Revolving Loans and Other Revolving Commitments contain a Previously Absent Financial Maintenance Covenant that is in effect prior to the Latest Maturity Date of the Closing Date Revolving
Facility, such Previously Absent Financial Maintenance Covenant shall be included for the benefit of the Closing Date Revolving Facility) or (C) such terms as are reasonably satisfactory to the Administrative Agent (provided that, at the
Borrower’s election, to the extent any term or provision is added for the benefit of (1) the lenders of Other Term Loans or Other Revolving Commitments, no consent shall be required from the Administrative Agent or any Lender to the
extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the Lenders of the Closing Date Term Loans or (2) the lenders under Other Revolving Commitments, no consent shall be
required from the Administrative Agent or any Lender to the extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the Lenders of the Closing Date Revolving Facility). Any Other
Term Loans may participate on a pro rata basis, less than a pro rata basis or greater than a pro rata basis in any prepayments of Term Loans hereunder (except that, unless otherwise permitted under this Agreement or unless the Class of Term
Loans being refinanced was so entitled to participate on a greater than a pro rata basis in such mandatory prepayments, such Other Term Loans may not participate on a greater than a pro rata basis as compared to any earlier maturing Class of
Term Loans constituting First Lien Obligations in any mandatory prepayments under Section 2.05(2)(a), (b) and (c)(i)), as specified in the applicable Refinancing Amendment. All Other Revolving Commitments shall provide that
(a) except as provided under clause (b) below, borrowings and repayments (other than permanent repayments) of principal under the applicable Other Revolving Commitments may be made on a pro rata basis, less than a pro rata basis or
greater than a pro rata basis and (b) the permanent repayment of Other Revolving Loans in connection with a termination of Other Revolving Commitments may be made on a pro rata basis or less than a pro rata basis (or greater than a pro rata
basis (i) with respect to (A) repayments required upon the Maturity Date of any Other Revolving Commitments and (B) repayments made in connection with any refinancing of Other Revolving Commitments or (ii) as compared to any
other Revolving Commitments with a later maturity date than such Other Revolving Commitments), in each case, with all other Revolving Commitments. In connection with any Refinancing Amendment, the Borrower shall, if reasonably requested by the
Administrative Agent, deliver customary reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Other Loans or Other Revolving Commitments
are provided with the benefit of the applicable Loan Documents.
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(2) Each Class of Other Commitments and Other Loans incurred under this
Section 2.15 shall be in an aggregate principal amount that is not less than $5,000,000 (or such lesser amount agreed by the Administrative Agent). The Administrative Agent shall promptly notify each Lender as to the effectiveness of
each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and
terms of the Other Commitments and Other Loans incurred pursuant thereto (including any amendments necessary to treat the Other Loans and/or Other Commitments as Loans and Commitments). Any Refinancing Amendment may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent (or in the case of the Revolving Facility, solely to the extent that such terms,
provisions and documentation with respect to the Revolving Facility would require consent of any Class of Lenders other than the Revolving Lenders under Section 10.01) and the Borrower, to effect the provisions of this
Section 2.15.
(3) This Section 2.15 shall supersede any provisions in Section 2.12, 2.13 or
10.01 to the contrary. For the avoidance of doubt, any of the provisions of this Section 2.15 may be amended with the consent of the Required Lenders (or the applicable Required Facility Lenders, if applicable). Notwithstanding
anything to the contrary in Section 10.01, (a) each Refinancing Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent (or in the case of the Revolving Facility, solely to the extent that such terms, provisions and documentation with respect to the Revolving Facility would require consent of any
Class of Lenders other than the Revolving Lenders under Section 10.01) and the Borrower, to effect the provisions of this Section 2.15, including to effect technical and corresponding amendments to this Agreement and the
other Loan Documents and (b) at the option of the Borrower in consultation with the Administrative Agent, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing
Lenders of the applicable Class or Classes, in each case under this clause (b), so long as the Administrative Agent reasonably agrees that such modification is favorable to the applicable Lenders.
SECTION 2.16 Extensions of Loans.
(1) Extension of Term Loans. The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any
Class (each, an “Existing Term Loan Class”) be converted or exchanged to extend the scheduled Maturity Date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term
Loans which have been so extended, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.16. Prior to entering into any Extension Amendment with respect to any Extended Term Loans, the
Borrower shall provide written notice to the Administrative Agent (who shall provide a copy of such notice to Lenders selected by the Borrower under the applicable Existing Term Loan Class (it being understood that any such request need not be
offered equally (or at all) to all Lenders of such Existing Term Loan Class)) (each, a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which terms shall be identical in
all material respects to the Term Loans of the Existing Term Loan Class from which they are to be extended except that (a) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments, if any,
of all or a portion of any principal amount of such Extended Term Loans may be delayed to later dates than the scheduled amortization, if any, of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a
corresponding adjustment to the scheduled amortization payments reflected in the Extension Amendment, the Incremental Amendment, the Refinancing Amendment or any other amendment, as the case may be,
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with respect to the Existing Term Loan Class from which such Extended Term Loans were extended), (b) (i) the interest rates (including through fixed interest rates), interest margins,
rate floors, upfront fees, funding discounts, original issue discounts and voluntary prepayment terms and premiums with respect to the Extended Term Loans may be different than those for the Term Loans of such Existing Term Loan Class and/or
(ii) additional fees and/or premiums may be payable to the Lenders providing such Extended Term Loans in addition to any of the items contemplated by the preceding clause (i), in each case, to the extent provided in the applicable
Extension Amendment, (c) the Extended Term Loans may have optional prepayment terms (including call protection and prepayment terms and premiums) as may be agreed between the Borrower and the Lenders thereof, (d) any Extended Term Loans
may participate on a pro rata basis, less than a pro rata basis or greater than a pro rata basis in any mandatory prepayments of Term Loans hereunder (except that, unless otherwise permitted under this Agreement, such Extended Term Loans may not
participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans in any mandatory prepayments under Section 2.05(2)(a), (b) and (c)(i)), in each case as specified in the respective
Term Loan Extension Request and (e) the Extension Amendment may provide for such other terms and conditions (other than as provided in the foregoing clauses (a) through (d)) with respect to the Extended Term Loans that, at
the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (including, for the avoidance of doubt, at the time of entering into any definitive documentation with respect to such
Indebtedness or, if in connection with a Limited Condition Transaction, the applicable LCT Test Date) as determined by the Borrower in good faith, (B) if otherwise not consistent with the terms of the Existing Term Loan Class subject to
such Term Loan Extension Request, are not materially more restrictive to the Borrower (as determined by the Borrower in good faith), when taken as a whole, than the terms of such Existing Term Loan Class subject to such Term Loan Extension
Request, except, in each case under this clause (B), with respect to (I) covenants and other terms applicable solely to any period after the Latest Maturity Date in respect of such Existing Term Loan Class subject to such Term Loan
Extension Request in effect immediately prior to such Extension Amendment or (II) a Previously Absent Financial Maintenance Covenant (so long as, to the extent that any Extended Terms Loans contain a Previously Absent Financial Maintenance
Covenant that is in effect prior to the applicable Latest Maturity Date of the Closing Date Term Loans, such Previously Absent Financial Maintenance Covenant shall be included for the benefit of the Closing Date Term Loans) or (C) are
reasonably satisfactory to the Administrative Agent (provided that, at the Borrower’s election, to the extent any term or provision is added for the benefit of the lenders of Extended Term Loans, no consent shall be required from the
Administrative Agent or any Lender to the extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the Lenders of the Closing Date Term Loans). No Lender shall have any obligation
to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Term Loan Extension Request. Any Extended Term Loans extended pursuant to any Term Loan Extension Request shall be
designated a series (each, a “Term Loan Extension Series”) of Extended Term Loans for all purposes of this Agreement and shall constitute a separate Class of Loans from the Existing Term Loan Class from which they were
extended; provided that any Extended Term Loans amended from an Existing Term Loan Class may, to the extent provided in the applicable Extension Amendment, be designated as an increase in any previously established Term Loan Extension
Series with respect to such Existing Term Loan Class.
(2) Extension of Revolving Commitments. The Borrower may at any time and
from time to time request that all or a portion of the Revolving Commitments of any Class (each, an “Existing Revolving Class”) be converted or exchanged to extend the scheduled Maturity Date(s) of any payment of principal with
respect to all or a portion of any principal amount of such Revolving Commitments (any such Revolving Commitments which have been so extended, “Extended Revolving Commitments”) and to provide for other terms consistent with this
Section 2.16. Prior to entering into any Extension Amendment with respect to any Extended Revolving Commitments, the Borrower shall provide written notice to the Administrative Agent (and the Administrative Agent shall provide a copy of
such notice to each of the Lenders selected by the Borrower under the applicable Existing Revolving Class (it being
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understood that any such request need not be offered equally (or at all) to all such Lenders of such Existing Revolving Class)) (each, a “Revolving Extension Request”) setting
forth the proposed terms of the Extended Revolving Commitments to be established, which terms shall be identical in all material respects to the Revolving Commitments of the Existing Revolving Class from which they are to be extended except
that (a) the scheduled final maturity date shall be extended to a later date than the scheduled final maturity date of the Revolving Commitments of such Existing Revolving Class, (b) (i) the interest rates (including through fixed interest
rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and voluntary prepayment terms and premiums with respect to the Extended Revolving Commitments may be different than those for the Revolving Commitments
of such Existing Revolving Class and/or (ii) additional fees and/or premiums may be payable to the Lenders providing such Extended Revolving Commitments in addition to any of the items contemplated by the preceding clause (i),
in each case, to the extent provided in the applicable Extension Amendment, (c) (i) except as provided under clause (ii) below, all borrowings under the Extended Revolving Commitments of the applicable Revolving Extension Series and
repayments thereunder (other than permanent repayments) may be made on a pro rata basis, less than a pro rata basis or greater than a pro rata basis and (ii) the permanent repayment of outstanding Revolving Loans under the Extended Revolving
Commitments in connection with a termination of Extended Revolving Commitments may be made on a pro rata basis or less than a pro rata basis (or greater than a pro rata basis (A) with respect to (I) repayments required upon the Maturity
Date of the non-extending Revolving Commitments or the Extended Revolving Commitments and (II) repayments made in connection with any refinancing of Extended Revolving Commitments or (B) as compared
to any other Revolving Commitments with a later maturity date than such Extended Revolving Commitments), in each case under this clause (c), with all other Revolving Commitments and (d) the Extension Amendment may provide for such other
terms and conditions (other than as provided in the foregoing clauses (a) through (c)) with respect to the Extended Revolving Commitments that, at the option of the Borrower, (i) reflect market terms and conditions (taken as
a whole) at the time of incurrence or issuance (including, for the avoidance of doubt, at the time of entering into any definitive documentation with respect to such Indebtedness or, if in connection with a Limited Condition Transaction, the
applicable LCT Test Date) as determined by the Borrower in good faith, (ii) if otherwise not consistent with the Existing Revolving Class subject to such Revolving Extension Request, are not materially more restrictive to the Borrower (as
determined by the Borrower in good faith), when taken as a whole, than the terms of such Existing Revolving Class subject to such Revolving Extension Request, except, in each case under this clause (ii), with respect to
(A) covenants and other terms applicable solely to any period after the Latest Maturity Date in respect of such Existing Revolving Class subject to such Revolving Extension Request in effect immediately prior to such Extension Amendment or
(B) a Previously Absent Financial Maintenance Covenant (so long as, to the extent that any such terms of any Extended Revolving Commitments contain a Previously Absent Financial Maintenance Covenant that is in effect prior to the applicable
Latest Maturity Date of the Closing Date Revolving Facility, such Previously Absent Financial Maintenance Covenant shall be included for the benefit of the Closing Date Revolving Facility) or (iii) are reasonably satisfactory to the
Administrative Agent (provided that, at the Borrower’s election, to the extent any term or provision is added for the benefit of the lenders of Extended Revolving Commitments, no consent shall be required from the Administrative Agent
or any Lender to the extent that such term or provision is also added, or the features of such term or provision are provided, for the benefit of the Lenders of the Closing Date Revolving Facility). No Lender shall have any obligation to agree to
have any of its Revolving Commitments of any Existing Revolving Class converted into Extended Revolving Commitments pursuant to any Revolving Extension Request. Any Extended Revolving Commitments extended pursuant to any Revolving Extension
Request shall be designated a series (each, a “Revolving Extension Series”) of Extended Revolving Commitments for all purposes of this Agreement and shall constitute a separate Class of Revolving Commitments from the Existing
Revolving Class from which they were extended; provided that any Extended Revolving Commitments amended from an Existing Revolving Class may, to the extent provided in the applicable Extension Amendment, be designated as an increase
in any previously established Revolving Extension Series with respect to such Existing Revolving Class.
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(3) Extension Request. The Borrower shall provide the applicable Extension Request to
the Administrative Agent at least five (5) Business Days (or such shorter period as the Administrative Agent may determine in its sole discretion) prior to the date on which Lenders under the applicable Existing Term Loan Class or Existing
Revolving Class, as applicable, are requested to respond. Any Lender holding a Term Loan under an Existing Term Loan Class (each, an “Extending Term Lender”) that has received an Extension Request and wishes to have all or a
portion of its Term Loans of an Existing Term Loan Class or Existing Term Loan Classes, as applicable, subject to such Extension Request converted or exchanged into Extended Term Loans, and any such Revolving Lender with a Revolving Commitment
under an Existing Revolving Class (each, an “Extending Revolving Lender”) that has received an Extension Request and wishes to have all or a portion of its Revolving Commitments of an Existing Revolving Class or Existing
Revolving Classes, as applicable, subject to such Extension Request converted or exchanged into Extended Revolving Commitments, as applicable, shall notify the Administrative Agent (each, an “Extension Election”) on or prior to
the date specified in such Extension Request of the amount of its Term Loans or Revolving Commitments, as applicable, which it has elected to convert or exchange into Extended Term Loans or Extended Revolving Commitments, as applicable. In the event
that the aggregate principal amount of Term Loans and/or Revolving Commitments, as applicable, subject to Extension Elections exceeds the amount of Extended Term Loans and/or Extended Revolving Commitments, respectively, requested pursuant to the
Extension Request, Term Loans and/or Revolving Commitments, as applicable, subject to Extension Elections shall be converted or exchanged into Extended Term Loans and/or Revolving Commitments, respectively, as directed by the Borrower.
(4) Extension Amendment. Extended Term Loans and Extended Revolving Commitments shall be established pursuant to an amendment (each, an
“Extension Amendment”) to this Agreement (which, notwithstanding anything to the contrary set forth in Section 10.01, shall not require the consent of any Lender other than the Extending Lenders with respect to the
Extended Term Loans and/or Extended Revolving Commitments established thereby, as the case may be) executed by the Borrower, the Administrative Agent and the Extending Lenders, it being understood that such Extension Amendment shall not require the
consent of any Lender other than (a) the Extending Lenders with respect to the Extended Term Loans or Extended Revolving Commitments, as applicable, established thereby, (b) with respect to any extension of the Revolving Commitments that
results in an extension of any Issuing Bank’s obligations with respect to Letters of Credit, the consent of such Issuing Bank and (c) with respect to any extension of the Revolving Commitments that results in an extension of any Swing
Line Lender’s obligations with respect to Swing Line Loans, the consent of such Swing Line Lender. Each request for an Extension Series of Extended Term Loans or Extended Revolving Commitments proposed to be incurred under this
Section 2.16 shall be in an aggregate principal amount that is not less than $5,000,000 (or such lesser amount as agreed by the Administrative Agent) (it being understood that the actual principal amount thereof provided by the
applicable Lenders may be lower than such minimum amount), and the Borrower may condition the effectiveness of any Extension Amendment on an Extension Minimum Condition, which may be waived by the Borrower in its sole discretion. In addition to any
terms and changes required or permitted by Sections 2.16(1) and 2.16(2), each of the parties hereto agrees that this Agreement and the other Loan Documents may be amended pursuant to an Extension Amendment, without the consent of any
other Lenders, to the extent necessary to (a) in respect of each Extension Amendment in respect of Extended Term Loans, amend the scheduled amortization payments pursuant to Section 2.07 or the applicable Incremental Amendment,
Extension Amendment, Refinancing Amendment or other amendment, as the case may be, with respect to the Existing Term Loan Class from which the Extended Term Loans were exchanged to reduce each scheduled repayment amount for the Existing Term
Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be reduced pursuant to such Extension Amendment (it being understood that the amount of any repayment amount payable with respect to any
individual Term Loan of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof), (b) reflect the existence and terms of the Extended Term Loans or Extended Revolving Commitments, as applicable,
incurred pursuant thereto and (c) modify the
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prepayments set forth in Section 2.05 to reflect the existence of the Extended Term Loans and the application of prepayments with respect thereto. Notwithstanding anything to the
contrary in Section 10.01, (a) each Extension Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the
reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.16, including to effect technical and corresponding amendments to this Agreement and the other Loan Documents and (b) at the
option of the Borrower in consultation with the Administrative Agent, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable Class or
Classes, in each case under this clause (b), so long as the Administrative Agent reasonably agrees that such modification is favorable to the applicable Lenders. In connection with any Extension Amendment, the Borrower shall, if reasonably
requested by the Administrative Agent, deliver customary reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Extended Term Loans and/or
Extended Revolving Commitments are provided with the benefit of the applicable Loan Documents.
(5) Notwithstanding anything to the
contrary contained in this Agreement, on any date on which any Existing Term Loan Class and/or Existing Revolving Class is converted or exchanged to extend the related scheduled maturity date(s) in accordance with clauses
(1) and (2) of this Section 2.16, in the case of the existing Term Loans or Revolving Commitments, as applicable, of each Extending Lender, the aggregate principal amount of such existing Loans shall be deemed reduced by
an amount equal to the aggregate principal amount of Extended Term Loans and/or Extended Revolving Commitments, respectively, so converted or exchanged by such Lender on such date, and the Extended Term Loans and/or Extended Revolving Commitments
shall be established as a separate Class of Loans, except as otherwise provided under Sections 2.16(1) and (2). Subject to the provisions of Sections 2.03(12) and 2.04(7) in connection with Letters of Credit and
Swing Line Loans, respectively, which mature or expire after a Maturity Date at any time Extended Revolving Commitments with a later Maturity Date are outstanding, all Letters of Credit and Swing Line Loans shall be participated on a pro rata basis
by each Lender with a Revolving Commitment in accordance with its percentage of the Revolving Commitments existing on the date of the Extension of such Extended Revolving Commitments (and except as provided in Sections 2.03(12) and
2.04(7), without giving effect to changes thereto on an earlier Maturity Date with respect to Letters of Credit and Swing Line Loans theretofore incurred or issued).
(6) In the event that the Administrative Agent determines in its sole discretion that the allocation of Extended Term Loans and/or Extended
Revolving Commitments of a given Extension Series to a given Lender was incorrectly determined as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such Lender in accordance with the
procedures set forth in the applicable Extension Amendment, then the Administrative Agent, the Borrower and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an
amendment to this Agreement and the other Loan Documents (each, a “Corrective Extension Amendment”) within fifteen (15) days following the effective date of such Extension Amendment, as the case may be, which Corrective
Extension Amendment shall (a) provide for the conversion or exchange and extension of Term Loans under the Existing Term Loan Class, or of Revolving Commitments under the Existing Revolving Class, in either case, in such amount as is required
to cause such Lender to hold Extended Term Loans or Extended Revolving Commitments, as applicable, of the applicable Extension Series into which such other Term Loans or Revolving Commitments were initially converted or exchanged, as the case may
be, in the amount such Lender would have held had such administrative error not occurred and had such Lender received the minimum allocation of the applicable Loans or Commitments to which it was entitled under the terms of such Extension Amendment,
in the absence of such error, (b) be subject to the satisfaction of such conditions as the Administrative Agent, the Borrower and such Extending Term Lender or Extending Revolving Lender, as applicable, may agree and (c) effect such other
amendments of the type (with appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.16(4).
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(7) No conversion or exchange of Loans or Commitments pursuant to any Extension Amendment in
accordance with this Section 2.16 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
(8) This Section 2.16 shall supersede any provisions in Section 2.12, 2.13 or 10.01 to the contrary. For the
avoidance of doubt, any of the provisions of this Section 2.16 may be amended with the consent of the Required Lenders (or the applicable Required Facility Lenders, if applicable).
SECTION 2.17 Defaulting Lenders.
(1) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then,
until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(a) Waivers
and Amendments. That Defaulting Lender’s right to approve or disapprove of any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.
(b) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative
Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise), shall be applied at such time or times as may be determined by the Administrative Agent as follows:
first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the relevant Issuing Banks or
Swing Line Lenders hereunder; third, if so determined by the Administrative Agent or requested by the relevant Issuing Banks or Swing Line Lenders, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any
participation in any Support Agreement, Letter of Credit or Swing Line Loan; fourth, as the Borrower may request (so long as no Default has occurred and is continuing), to the funding of any Loan in respect of which that Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a
non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders
or the relevant Issuing Banks or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the relevant Issuing Banks against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Default has occurred and is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by
the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (i) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (ii) such Loans or L/C Borrowings were made at
a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a
pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed
by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(1)(b) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
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(c) Certain Fees. That Defaulting Lender (i) shall not be
entitled to receive any commitment fee pursuant to Section 2.09(1) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender) and (ii) shall be limited in its right to receive Letter of Credit fees as provided in Section 2.03(8).
(d) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting
Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Support Agreements, Letters of Credit or Swing Line Loans pursuant
to Section 2.03 and Section 2.04, respectively, the “Applicable Percentage” of each Non-Defaulting Lender’s Revolving Loans and L/C Obligations shall be computed
without giving effect to the Commitment of that Defaulting Lender; provided that the aggregate obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Support Agreements,
Letters of Credit or Swing Line Loans shall not exceed the positive difference, if any, of (i) the Revolving Commitment of that Non-Defaulting Lender minus (ii) the aggregate Outstanding Amount of
the Revolving Loans of that Non-Defaulting Lender.
(e) Used Fee Allocation.
If all or any portion of such Defaulting Lender’s participation in L/C Obligations is neither reallocated pursuant to clause (d) above nor Cash Collateralized, then, without prejudice to any rights or remedies of the Administrative
Agent, the Issuing Bank or any other Lender hereunder, all unused line fees that otherwise would have been payable to such Defaulting Lender (solely with respect to such Defaulting Lender’s Pro Rata Share of its Revolving Commitment that was
utilized for such L/C Obligations) and Letter of Credit fees payable under Section 2.03(8) with respect to such Defaulting Lender’s Pro Rata Share of the L/C Obligations shall be payable to the Administrative Agent (in the case of
Support Agreements) or Issuing Bank (in the case of Letters of Credit) until and to the extent that such Defaulting Lender’s Pro Rata Share of the L/C Obligations is reallocated and/or Cash Collateralized.
(f) Obligation to Issue Letters of Credit. So long as any Lender that holds a participation in any L/C Obligation is a
Defaulting Lender, neither the Administrative Agent nor any Issuing Bank shall be required to issue, amend or increase any Support Agreement or Letter of Credit unless the Defaulted Lender’s Pro Rata Share of the then outstanding participation
in L/C Obligations will be covered by the Revolving Commitments of the Non-Defaulting Lenders and/or Cash Collateral will be provided by the Borrower, in each case in an amount equal to one hundred percent
(100%) of such Defaulted Lender’s Pro Rata Share of the then outstanding participation in L/C Obligations, all in accordance with and as set forth in this Section 2.17(1)(f) or Section 2.03(7), and participating
interests in any newly issued or increased Letter of Credit or Support Agreement shall be allocated among Non-Defaulting Lenders in a manner consistent with this Section 2.17(1) (and such
Defaulting Lender shall not participate therein).
(2) Defaulting Lender Cure. If the Borrower, the Administrative Agent, any Swing
Line Lender and the Issuing Banks agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and
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unfunded participations in Support Agreements, Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving
effect to Section 2.17(1)(d)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that
Lender was a Defaulting Lender; provided further that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender having been a Defaulting Lender.
SECTION 2.18 Prepayment Premium.
(1) If, prior to the date that is six (6) months after the Closing Date, (a) all or any portion of the Closing Date Term Loans are
voluntarily prepaid pursuant to Section 2.05(1)(a) or mandatorily prepaid pursuant to Section 2.05(2)(c) with the proceeds of, or any conversion of Closing Date Term Loans into, any new or replacement tranche of broadly
syndicated U.S. Dollar floating rate term loans (other than term “A” loans) secured on a pari passu basis with the Closing Date Term Loans in a transaction the primary purpose of which is to, and which does, lower the All-In Yield then in effect for the Closing Date Term Loans so prepaid or (b) there occurs any amendment, amendment and restatement or other modification of the Term Facility the primary purpose of which is to,
and which does, reduce the All-In Yield then in effect for the Closing Date Term Loans (any of clauses (a) or (b), a “Repricing Transaction”), then in each case the aggregate
principal amount so subject to such Repricing Transaction will be subject to a prepayment premium equal to 1.00% of the principal amount of the Closing Date Term Loans so prepaid, assigned or accelerated (the “Call Premium”).
(2) Notwithstanding the foregoing, there shall be no Call Premium (a) if such event occurs in connection with (i) a Change of
Control or a sale of all or substantially all assets of the Borrower and its Restricted Subsidiaries taken as a whole, (ii) a Transformative Transaction, (iii) a dividend recapitalization, (iv) a transaction that results in the
upsizing of the Closing Date Term Loans or (v) an existing Lender refusing to approve an amendment, (b) if such prepayment is made with internally generated cash or (c) unless otherwise elected by the Borrower, due to any Lender, if
such Lender or an Affiliate thereof (i) participates in the refinancing or repricing, or (ii) is offered the right to participate in the refinancing or repricing and declines.
ARTICLE III
Taxes, Increased Costs Protection and Illegality
SECTION 3.01 Taxes.
(1) Except as required by applicable Law, all payments by or on account of any Loan Party 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 or withholding for any Taxes.
(2) If any Loan Party or any
other applicable withholding agent is required (as determined in the good faith discretion of such Loan Party or other applicable withholding agent) by applicable Law to make any deduction or withholding on account of any Taxes from any sum paid or
payable by or on account of any Loan Party to or for the account of any Lender or Agent under any of the Loan Documents:
(a) the applicable Loan Party or other applicable withholding agent shall make such deduction or withholding and pay to the
relevant Governmental Authority any such Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Loan Party) for such Loan Party’s account or (if that liability is imposed on
the Lender or Agent) on behalf of and in the name of the Lender or Agent (as applicable);
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(b) if such Tax is a Non-Excluded
Tax, the sum payable by any Loan Party to such Lender or Agent (as applicable) shall be increased by such Loan Party to the extent necessary to ensure that, after the making of any required deduction or withholding for
Non-Excluded Taxes (including any deductions or withholdings for Non-Excluded Taxes attributable to any payments required to be made under this
Section 3.01), such Lender receives on the due date a net sum equal to what it would have received had no such deduction or withholding been required or made; and
(c) as soon as reasonably practicable, after any payment of Taxes by the applicable Loan Party or other applicable withholding
agent to a Governmental Authority pursuant to this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence reasonably satisfactory to the Administrative Agent of such deduction or withholding and of the remittance thereof to the relevant Governmental Authority.
(3) Status of Lender. Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide
the Borrower and the Administrative Agent with any documentation prescribed by Laws or reasonably requested by the Borrower or the Administrative Agent certifying as to any entitlement of such Lender to an exemption from, or reduction in,
withholding tax with respect to any payments to be made to such Lender under any Loan Document. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by
applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Each such Lender shall, whenever a lapse in time or change in circumstances renders any such documentation (including any specific documentation required below in this Section 3.01(3)) obsolete, expired or inaccurate in any
respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation or promptly notify the Borrower and Administrative Agent of its legal ineligibility to do so.
Without limiting the foregoing:
(a) Each U.S. Lender shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a
party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) two properly completed and duly signed copies of IRS Form W-9 (or successor form)
certifying that such Lender is exempt from U.S. federal backup withholding.
(b) Each Foreign Lender, to the extent it is
legally eligible to do so, shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent)
whichever of the following is applicable:
(i) two properly completed and duly signed copies of IRS Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income Tax treaty to which the United States is
a party, and such other documentation as required under the Code,
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(ii) two properly completed and duly signed copies of IRS Form W-8ECI (or any successor forms),
(iii) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (A) two properly completed and duly signed United States Tax Compliance Certificates and (B) two properly completed and duly
signed copies of IRS Form W-8BEN or W-8BEN-E (or any successor forms),
(iv) to the extent a Foreign Lender is not the beneficial owner of an interest in a Loan or Commitment hereunder (for example,
where such Foreign Lender is a partnership), two properly completed and duly signed copies of IRS Form W-8IMY (or any successor forms) of such Foreign Lender, accompanied by an IRS Form W-8ECI, Form W-8BEN or W-8BEN-E, United States Tax Compliance Certificate, Form W-9, Form W-8IMY and any other required information (or any successor forms) from each beneficial owner that would be required under this Section 3.01(3) if such
beneficial owner were a Lender, as applicable (provided that, if a Lender is a partnership and if one or more beneficial owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by
such Foreign Lender on behalf of such beneficial owner(s)), or
(v) two properly completed and duly signed copies of any
other documentation 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.
(c) If a payment made to a Lender under any Loan Document would be subject to 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 Borrower and the Administrative Agent at
the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and
such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has
complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this paragraph (c), the term “FATCA” shall include any amendments made
to FATCA after the date of this Agreement.
For the avoidance of doubt, if a Lender is an entity disregarded from its owner for U.S. federal income tax
purposes, references to the foregoing documentation are intended to refer to documentation with respect to such Lender’s owner and, as applicable, such Lender.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such
form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. Notwithstanding anything to the contrary in this Section 3.01(3) (except as required to be
provided pursuant to Section 3.01(3)(a)), no Lender shall be required to deliver any documentation pursuant to this Section 3.01(3) that such Lender is not legally eligible to deliver.
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Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor
Administrative Agent, as applicable, any documentation provided by such Lender to the Administrative Agent pursuant to this Section 3.01(3).
(4) Without duplication of other amounts payable by the Borrower pursuant to Section 3.01(2), the Borrower shall timely pay to the
relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(5) The Loan Parties shall, jointly and severally, indemnify a Lender or the Administrative Agent (each a “Tax
Indemnitee”), within ten (10) days after written demand therefor, for the full amount of any Non-Excluded Taxes paid or payable by such Tax Indemnitee (including
Non-Excluded Taxes imposed on or attributable to amounts payable under this Section 3.01) (other than any interest, penalties and other costs determined by a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence, bad faith or willful misconduct of such Tax Indemnitee), whether or not such Taxes were correctly or legally
imposed or asserted by the Governmental Authority, provided that the Borrower shall not be required to indemnify any Tax Indemnitee for any incremental interest, penalties or expenses resulting from the failure of such Tax Indemnitee to
notify the Borrower of such indemnification claim within 180 days after the Tax Indemnitee’s receipt of written notice from the applicable taxing authority of the specific assessment giving rise to such indemnification claim (except that, if
the circumstance giving rise to such increased interest, penalties or expenses is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof);
provided further that if the Borrower reasonably believes that such Taxes were not correctly or legally asserted, such Tax Indemnitee will cooperate with the Borrower to obtain a refund of such Taxes (which shall be repaid to the
Borrower in accordance with Section 3.01(6)) so long as such efforts would not, in the sole determination exercised in good faith of such Tax Indemnitee, result in any additional out-of-pocket costs or expenses not reimbursed by such Loan Party or be otherwise materially disadvantageous to such Tax Indemnitee.. A certificate as to the amount of such payment or liability prepared in
good faith and delivered by the Tax Indemnitee or by the Administrative Agent on behalf of another Tax Indemnitee, shall be conclusive absent manifest error.
(6) If and to the extent that a Tax Indemnitee, in its sole discretion (exercised in good faith), determines that it has received a refund
(whether received in cash or applied against any other cash Taxes payable) of any Non-Excluded Taxes or Other Taxes in respect of which it has received indemnification payments or additional amounts under this
Section 3.01, then such Tax Indemnitee shall pay to the relevant Loan Party the amount of such refund, net of all out-of-pocket expenses of the Tax
Indemnitee (including any Taxes imposed with respect to such refund), and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Loan Party, upon the request of
the Tax Indemnitee, shall repay the amount paid over by the Tax Indemnitee (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Tax Indemnitee to the extent the Tax Indemnitee is required to
repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.01(6), in no event will the Tax Indemnitee be required to pay any amount to a Loan Party pursuant to this
Section 3.01(6) the payment of which would place the Tax Indemnitee in a less favorable net after-Tax position than the Tax Indemnitee would have been in if the Tax subject to indemnification and
giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require a Tax Indemnitee to
make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
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(7) On or before the date the Administrative Agent becomes a party to this Agreement, the
Administrative Agent shall deliver to the Borrower whichever of the following is applicable: (a) if the Administrative Agent is a “United States person” within the meaning of Section 7701(a)(30) of the Code, two executed copies
of IRS Form W-9 certifying that the Administrative Agent is exempt from U.S. federal backup withholding or (b) if the Administrative Agent is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code, (i) with respect to payments received for its own account, two executed copies of IRS Form W-8ECI and (ii) with respect to payments received on account of any
Lender, two executed copies of IRS Form W-8IMY (together with all required accompanying documentation) certifying that the Administrative Agent is a Withholding U.S. Branch. At any time thereafter, the
Administrative Agent shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the reasonable request of the
Borrower. Notwithstanding anything to the contrary in this Section 3.01(7), the Administrative Agent shall not be required to provide any documentation that the Administrative Agent is not legally eligible to deliver as a result of a Change in
Law after the date it becomes an Administrative Agent.
(8) The agreements in 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, or the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(9) For the avoidance of doubt, for purposes of this Section 3.01, the term “Lender” includes any Issuing Bank and any
Swing Line Lender and the term applicable Law includes FATCA.
SECTION 3.02 Illegality. If any Lender reasonably determines
that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to Term
SOFR, or to determine or charge interest rates based upon Term SOFR, then, on written notice thereof by such Lender to the Borrower through the Administrative Agent, (1) any obligation of such Lender to make or continue Term SOFR Loans or to
convert Base Rate Loans to Term SOFR Loans shall be suspended and (2) 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 reasonably 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 Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (a) the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Term SOFR Loans and shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term SOFR 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 Term SOFR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loans and (b) if such notice asserts the illegality of such Lender determining or
charging interest rates based upon the Term SOFR component of the Base Rate with respect to any Base Rate Loans, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to
the Term SOFR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon Term SOFR. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.
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SECTION 3.03 Inability to Determine Rates. Subject to Section 1.12,
if the Administrative Agent (in the case of clause (1) below) or the Required Lenders (in the case of clause (2) below) reasonably determine that for any reason in connection with any request for a Term SOFR Loan or a
conversion to or continuation thereof that:
(1) adequate and reasonable means do not exist for determining Term SOFR for any requested
Interest Period with respect to a proposed Term SOFR Loan or in connection with an existing or proposed Base Rate Loan, or
(2) Term SOFR
for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (a) the obligation of the Lenders to make or maintain Term
SOFR Loans shall be suspended and (b) 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 (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Term SOFR Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
SECTION 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Term SOFR Loans.
(1) Increased Costs Generally. If any Change in Law shall:
(a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;
(b) subject
any Lender to any Tax of any kind whatsoever with respect to this Agreement, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes, Other Taxes covered by
Section 3.01 and any Excluded Taxes); or
(c) impose on any Lender any other condition, cost or expense (in
each case, other than with respect to Taxes) affecting this Agreement or Term SOFR Loans made by such Lender that is not otherwise accounted for in the definition of “Term SOFR” or this clause (1);
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by
reference to Term SOFR (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender (whether of principal, interest or any other amount) then, from time to time within thirty (30) days after written demand by such Lender setting
forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent), the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered; provided that such amounts shall only be payable by the Borrower to the applicable Lender under this Section 3.04(1) so long as such Lender certifies that it is such Lender’s general policy
or practice to demand compensation in similar circumstances under comparable provisions of other financing agreements. Notwithstanding the foregoing, for the avoidance of doubt, in no event shall the Borrower be required to compensate a Lender or
any holder of the Loans under this Section 3.04 for any Taxes described in clauses (2) through (5) of the definition of Excluded Taxes, whether or not attributable to payments made by the Borrower.
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(2) Capital Requirements. If any Lender reasonably determines that any Change in Law
affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on
the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by it, or participations in or issuance of Letters of Credit by such Lender, to a level below that which
such Lender or such Lender’s holding company, as the case may be, could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to
capital adequacy and liquidity), then from time to time within thirty (30) days after written 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), the Borrower will pay to such Lender additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered; provided that such amounts shall only be
payable by the Borrower to the applicable Lender under this Section 3.04(2) so long as it is such Lender’s general policy or practice to demand compensation in similar circumstances under comparable provisions of other financing
agreements.
(3) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified in clause (1) or (2) of this Section 3.04 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay
such Lender, as the case may be, the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
SECTION 3.05 [Reserved].
SECTION 3.06 Matters Applicable to All Requests for Compensation.
(1) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use
reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the good faith judgment of such Lender
such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Sections 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as
applicable, and (b) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material economic, legal or regulatory respect.
(2) Suspension of Lender Obligations. If any Lender requests compensation by the Borrower under Section 3.04, the Borrower
may, by notice to such Lender (with a copy to the Administrative Agent), suspend the obligation of such Lender to make or continue Term SOFR Loans from one Interest Period to another Interest Period, 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 3.06(3) shall be applicable); provided that such suspension shall not affect the right of such Lender
to receive the compensation so requested.
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(3) Conversion of Term SOFR Loans. If any Lender gives notice to the Borrower (with a
copy to the Administrative Agent) that the circumstances specified in Section 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of such Lender’s Term SOFR Loans 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, as applicable, are outstanding, 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 SOFR Loans to the extent necessary so that, after giving effect thereto, all Loans of a given Class held by the Lenders of such Class 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 Pro Rata Shares.
(4) Delay in
Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of Sections 3.01 or 3.04 shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of Sections 3.01 or 3.04 for any increased costs incurred or reductions suffered more than one hundred and eighty
(180) days prior to the date that such Lender notifies the Borrower of the event giving rise to such claim and of such Lender’s intention to claim compensation therefor (except that, if the circumstance giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).
SECTION 3.07 Replacement of Lenders under Certain Circumstances. If (1) any Lender requests compensation under
Section 3.04 or ceases to make Term SOFR Loans as a result of any condition described in Section 3.02 or Section 3.04, (2) the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Sections 3.01 or 3.04, (3) any Lender is a Non-Consenting Lender, (4) any Lender becomes a Defaulting Lender or (5) any other
circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
(a) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 10.07), all of its interests, rights and obligations under this Agreement (or, with respect to clause (3) above, all of its interests, rights and obligations with respect to the
Class of Loans or Commitments that is the subject of the related consent, waiver, or amendment, as applicable) and the related Loan Documents to one or more Eligible Assignees that shall assume such obligations (any of which assignee may be
another Lender, if a Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the
Administrative Agent the assignment fee specified in Section 10.07(2)(d);
(ii) such Lender shall have received
payment of an amount equal to the applicable outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents and (solely in connection with any amendment,
amendment and restatement or other modification to this Agreement which reduces, waives or modifies the premium set forth in Section 2.18) its pro rata share (as determined immediately prior to being so replaced) of any “prepayment
premium” pursuant to Section 2.18 that would otherwise be owed in connection therewith as if such Loan were being prepaid by the Borrower pursuant to Section 2.05(1)(a) at the time of such assignment and delegation) from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of such prepayment premium and all other amounts);
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(iii) such Lender being replaced pursuant to this Section 3.07
shall (I) execute and deliver an Assignment and Assumption with respect to all, or a portion, as applicable, of such Lender’s Commitment and outstanding Loans and participations in L/C Obligations and Swing Line Loans and
(II) deliver any Notes evidencing such Loans to the Borrower (or a lost or destroyed note indemnity in lieu thereof); provided that the failure of any such Lender to execute an Assignment and Assumption or deliver such Notes shall not
render such sale and purchase (and the corresponding assignment) invalid and such assignment shall be recorded in the Register and the Notes shall be deemed to be canceled upon such failure;
(iv) the Eligible Assignee 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 and confidentiality provisions under this Agreement, which shall survive as to such assigning Lender;
(v) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments
required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(vi) such assignment does not conflict with applicable Laws;
(vii) any Lender that acts as an Issuing Bank may not be replaced hereunder at any time when it has any Letter of Credit
outstanding hereunder unless arrangements reasonably satisfactory to such Issuing Bank (including the furnishing of a backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to such Issuing Bank or
the depositing of Cash Collateral into a Cash Collateral Account in amounts and pursuant to arrangements reasonably satisfactory to such Issuing Bank) have been made with respect to each such outstanding Letter of Credit; and
(viii) the Lender that acts as Administrative Agent cannot be replaced in its respective capacity as Administrative Agent other
than in accordance with Section 9.11; or
(b) terminate the Commitment of such Lender or Issuing Bank, as the
case may be, and (i) in the case of a Lender (other than an Issuing Bank), repay all Obligations of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date (including any
“prepayment premium” pursuant to Section 2.18 that would otherwise be owed to such Lender in connection therewith) and (ii) in the case of an Issuing Bank, repay all Obligations of the Borrower owing to such Issuing Bank
relating to the Loans and participations held by such Issuing Bank as of such termination date and Cash Collateralize, cancel or backstop, or provide for the deemed reissuance under another facility, on terms satisfactory to such Issuing Bank any
Letters of Credit issued by it; provided that in the case of any such termination of the Commitment of a Non-Consenting Lender such termination shall be sufficient (together with all other consenting Lenders)
to cause the adoption of the applicable consent, waiver or amendment of the Loan Documents and such termination shall, with respect to clause (3) above, be in respect of all of its interests, rights and obligations with respect to the
Class of Loans or Commitments that is the subject of the related consent, waiver and amendment.
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In the event that (1) the Borrower or the Administrative Agent has requested that the
Lenders consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (2) the consent, waiver or amendment in question requires the agreement of each Lender, all affected Lenders or all the Lenders
or all affected Lenders with respect to a certain Class or Classes of the Loans/Commitments and (3) the Required Lenders or Required Facility 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”.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 3.08
Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.
ARTICLE IV
Conditions Precedent to Credit Extensions
SECTION 4.01 Conditions to Credit Extensions on Closing Date. The obligation of each Lender to make a Credit Extension hereunder
on the Closing Date is subject to satisfaction (or waiver) of the following conditions precedent, except as otherwise agreed between the Borrower and each of the Lenders set forth on Schedule 2.01:
(1) The Administrative Agent’s (or its counsel’s) receipt of the following, each of which may be originals, facsimiles or copies in
“.pdf” format unless otherwise specified, each properly executed by a Responsible Officer of the applicable Loan Party (other than in the case of clause (1)(e)(i) and (1)(f) below):
(a) a Committed Loan Notice;
(b) executed counterparts of this Agreement and the Guaranty;
(c) each Collateral Document set forth on Schedule 4.01(1)(c) required to be executed on the Closing Date as indicated on such
schedule, duly executed by each Loan Party that is party thereto;
(d) subject to Section 6.12(2):
(i) certificates, if any, representing the Pledged Collateral that is certificated equity of the Borrower and the Loan
Parties’ wholly owned Material Domestic Subsidiaries that are Restricted Subsidiaries accompanied by undated stock powers executed in blank; and
(ii) evidence that all UCC-1 financing statements in the appropriate jurisdiction or
jurisdictions for each Loan Party that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been provided for, and arrangements for the filing thereof in a
manner reasonably satisfactory to the Administrative Agent shall have been made;
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(e) (i) certificates of good standing from the secretary of state of the
state of organization of each Loan Party (to the extent such concept exists in such jurisdiction) and (ii) a certificate from a Responsible Officer of each Loan Party certifying (A) a copy of the Organizational Documents of such Loan
Party, (B) a copy of the resolutions or other action of the Board of Directors of such Loan Party approving the execution, delivery and performance of the Loan Documents to which such Loan Party is a party and (C) an incumbency certificate
of Responsible Officers of such Loan Party, in each case are attached thereto;
(f) a customary legal opinion from
(i) Ropes & Gray LLP, in its capacity as counsel to the Loan Parties and (ii) each local counsel to the Loan Parties listed on Schedule 4.01(1)(f) in the jurisdictions indicated on such schedule; and
(g) a solvency certificate from a Financial Officer of the Borrower (after giving effect to the Transactions) substantially in
the form attached hereto as Exhibit I.
(2) The Administrative Agent and each Lender as of the Closing Date shall have received at
least two (2) Business Days prior to the Closing Date all documentation and other information in respect of the Borrower and the Guarantors (including, if the Borrower qualifies as a “legal entity customer” under the Beneficial
Ownership Regulation, a Beneficial Ownership Certification in respect of the Borrower) required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act and Beneficial Ownership
Regulations) that has been reasonably requested in writing by it at least ten (10) Business Days prior to the Closing Date.
(3) The
representations and warranties of the Borrower set forth in Article V hereof and the representations and warranties of the applicable Loan Parties set forth in the other Loan Documents shall be true and correct in all material respects on and as of
the Closing 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.
(4) All fees and expenses (in the case of expenses, to the extent invoiced at least three (3) Business Days prior to the
Closing Date (except as otherwise reasonably agreed by the Borrower)) required to be paid hereunder and under the Fee Letter on the Closing Date shall have been paid, or shall be paid substantially concurrently with the initial Borrowing on the
Closing Date.
(5) No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application
of the proceeds therefrom
Without limiting the generality of the provisions of the last paragraph of
Section 9.03, for purposes of determining satisfaction of the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the
proposed Closing Date specifying its objection thereto.
SECTION 4.02 Conditions to Credit Extensions after the Closing Date.
Subject to Sections 1.07(11) and (12), 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, a continuation of Term SOFR
Loans or a Borrowing pursuant to any Incremental Amendment) after the Closing Date is subject to the following conditions precedent:
(1)
The representations and warranties of the Borrower 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 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.
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(2) No Default or Event of Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds therefrom.
(3) The Administrative Agent, the relevant Issuing Bank or the Swing Line
Lenders (as applicable) shall have received a Request for Credit Extension in accordance with the requirements hereof.
(4) Each Request
for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, a continuation of Term SOFR Loans or a Borrowing pursuant to an Incremental Amendment) submitted by the Borrower after the Closing Date
shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(1) and 4.02(2) have been satisfied on and as of the date of the applicable Credit Extension.
In addition, solely to the extent the Borrower has delivered to the Administrative Agent a Notice of Intent to Cure pursuant to
Section 8.04, no Revolving Lender shall be required to honor a request for a Credit Extension after delivery of such notice until the applicable Cure Amount specified in such notice is actually received by the Borrower. For
the avoidance of doubt, the preceding sentence shall have no effect on the continuation or conversion of any Loans outstanding.
ARTICLE V
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and the Lenders, after giving effect to the Transactions, at the time of each
Credit Extension (solely to the extent required to be true and correct for such Credit Extension pursuant to Article IV or Section 2.14, as applicable):
SECTION 5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and each of its respective Restricted
Subsidiaries that is a Material Subsidiary:
(1) is a Person duly organized or formed, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation or organization (to the extent such concept exists in such jurisdiction),
(2) has all corporate
or other organizational power and authority to (a) own or lease its assets and carry on its business as currently conducted and (b) in the case of the Loan Parties, execute, deliver and perform its obligations under the Loan Documents to
which it is a party,
(3) is duly qualified and in good standing (to the extent such concept exists) under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its business as currently conducted requires such qualification,
(4) is in compliance with all applicable Laws orders, writs, injunctions and orders (including with the United States Foreign Corrupt
Practices Act of 1977 (the “FCPA”) and the USA PATRIOT Act), and
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(5) has all requisite governmental licenses, authorizations, consents and approvals to
operate its business as currently conducted,
except, in each case referred to in the preceding clauses (1) (with respect to the good standing of a
Person other than the Borrower), (2)(a), (3), (4) or (5), to the extent that failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.02 Authorization; No Contravention.
(1) The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party have been duly authorized
by all necessary corporate or other organizational action.
(2) None of the execution, delivery and performance by each Loan Party of each
Loan Document, and in the case of clause (a) below, the incurrence of Indebtedness and granting of security interests and guarantees thereunder, as applicable, to which such Person is a party will:
(a) contravene in any material respect the terms of any of such Person’s Organizational Documents,
(b) result in any breach or contravention of, or the creation of any Lien upon any of the property or assets of such Person or
any of the Restricted Subsidiaries (other than as permitted by Section 7.01) under any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject, or
(c) violate any applicable Law,
except with respect to any breach, contravention or violation (but not creation of Liens) referred to in the preceding clause (b) or (c),
to the extent that such breach, contravention or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.03 Governmental Authorization. No material approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, except for:
(1) filings and registrations necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties,
(2) the approvals, consents, exemptions, authorizations, actions, notices and filings that have been duly obtained, taken, given or made
and are in full force and effect (except to the extent not required to be obtained, taken, given or made or not required to be in full force and effect pursuant to the Collateral and Guarantee Requirement), and
(3) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.04 Binding Effect.
This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party hereto or thereto, as applicable. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party that is party
thereto, enforceable against each such Loan Party in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws, by general principles of equity and principles of good faith and fair dealing.
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SECTION 5.05 Financial Condition; No Material Adverse Effect.
(1) The financial statements (i) of the Borrower for its fiscal year ended December 31, 2025 filed with the SEC prior to the Closing
Date and (ii) after the Closing Date, most recently provided pursuant to Section 6.01(1) or (2), as applicable, present fairly, in all material respects, the financial position and results of operations and cash flows of the
Borrower on a consolidated basis as of such dates and for such periods in accordance with GAAP, (x) except as otherwise expressly noted therein, (y) subject, in the case of quarterly financial statements, to the absence of footnotes and
normal year-end adjustments and (z) except as may be necessary to reflect any differing entities and organizational structure prior to giving effect to the Transactions.
(2) Since December 31, 2025, there has been no Material Adverse Effect.
SECTION 5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the
Borrower, overtly threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of the Restricted Subsidiaries, that would reasonably be expected to have a Material Adverse Effect.
SECTION 5.07 Labor Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect: (1) there are no strikes or other labor disputes against the Borrower or the Restricted Subsidiaries pending or, to the knowledge of the Borrower, threatened in writing and (2) hours worked by and payment made based on
hours worked to employees of each of the Borrower or the Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Laws dealing with wage and hour matters.
SECTION 5.08 Ownership of Property; Liens. Each Loan Party and each of its respective Restricted Subsidiaries has good and valid
record title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for Liens permitted by
Section 7.01 and except where the failure to have such title or other interest would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.09 Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect: (1) each Loan Party and each of its Restricted Subsidiaries and their respective operations and properties is in compliance with all applicable Environmental Laws; (2) none of the Loan Parties or any of their
respective Restricted Subsidiaries is subject to any actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened in writing relating to any Environmental Liability; and (3) none of the Loan Parties
or any of their respective Restricted Subsidiaries has treated, stored, transported or Released Hazardous Materials at or from any currently or, to the knowledge of the Borrower, formerly owned, leased or operated real estate or facility, which
would reasonably be expected to give rise to any Environmental Liability.
SECTION 5.10 Taxes. Except as would not, either
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, each Loan Party and each of its Restricted Subsidiaries has timely filed all tax returns and reports required to be filed, and has timely paid all Taxes
(including satisfying its withholding tax obligations) levied or imposed on their properties, income or assets (whether or not shown in a tax return), except those which are being contested in good faith by appropriate actions
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diligently taken and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax assessment, deficiency or other claim against any Loan Party or any of its
Restricted Subsidiaries except (1) those being actively contested by a Loan Party or such Restricted Subsidiary in good faith and by appropriate actions diligently taken and for which adequate reserves have been provided in accordance with GAAP
or (2) those which would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
SECTION 5.11 ERISA Compliance.
(1) Except as would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (a) each
Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state Laws and (b) each Plan that is intended to be a qualified plan under Section 401(a) of the Code may rely upon an opinion letter for a
prototype plan or has received a favorable determination letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto is exempt from federal income tax under
Section 501(a) of the Code.
(2) (a) No ERISA Event has occurred or is reasonably expected to occur and (b) none of the Borrower
or any of their respective ERISA Affiliates has engaged in a transaction that would be subject to Sections 4069 or 4212(c) of ERISA, except, with respect to each of the foregoing clauses of this Section 5.11(2), as would not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(3) Except where
non-compliance or the incurrence of an obligation would not reasonably be expected to result in a Material Adverse Effect: (a) each Foreign Plan has been maintained in compliance with its terms and with
the requirements of any and all applicable Laws; and (b) none of the Borrower or any Restricted Subsidiary has incurred any obligation in connection with the termination of or withdrawal from any Foreign Plan.
SECTION 5.12 Subsidiaries.
(1) As of the Closing Date, after giving effect to the Transactions, all Equity Interests that constitute Collateral owned by the Borrower or
any Subsidiary Guarantor in any of their respective Subsidiaries are owned free and clear of all Liens of any person, except (a) those Liens created under the Collateral Documents and (b) any Lien that is permitted under
Section 7.01.
(2) As of the Closing Date, after giving effect to the Transactions, Schedule 5.12 sets forth:
(a) the name and jurisdiction of organization of each Subsidiary, and
(b) the ownership interests of the Borrower and any Subsidiary of the Borrower in each Subsidiary, including the percentage of
such ownership.
SECTION 5.13 Margin Regulations; Investment Company Act.
(1) 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 Board of Governors of the Federal Reserve System of the United States), 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.
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(2) No Loan Party is required to be registered as an “investment company” under
the Investment Company Act of 1940.
SECTION 5.14 Disclosure. As of the Closing Date, none of the written information and
written data heretofore or contemporaneously furnished in writing by or on behalf of the Borrower or any Subsidiary Guarantor to any Agent or any Lender on or prior to the Closing Date in connection with the Transactions, when taken as a whole,
contains any material misstatement of fact or omits to state any material fact necessary to make such written information and written data taken as a whole, in the light of the circumstances under which it was delivered, not materially misleading
(after giving effect to all modifications and supplements to such written information and written data, in each case, furnished after the date on which such written information or such written data was originally delivered and prior to the Closing
Date); it being understood that for purposes of this Section 5.14, such written information and written data shall not include any projections, pro forma financial information, financial estimates, forecasts, third-party reports and
memorandum and forward-looking information or information of a general economic or general industry nature.
SECTION 5.15
Intellectual Property; Licenses, Etc. The Borrower and the Restricted Subsidiaries have good and marketable title to, or a license or right to use, all patents, trademarks, service marks, trade names, copyrights, know-how, trade secrets and other intellectual property rights (collectively, “IP Rights”) that to the knowledge of the Borrower are reasonably necessary for the operation of their respective
businesses as currently conducted, except where the failure to have any such rights, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, the operation of the
respective businesses of the Borrower or any Restricted Subsidiary as currently conducted does not infringe upon, dilute, misappropriate or violate any IP Rights held by any Person except for such infringements, dilutions, misappropriations or
violations, individually or in the aggregate, that would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any IP Rights is pending or, to the knowledge of the Borrower, threatened in writing against any
Loan Party or Restricted Subsidiary, that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
SECTION 5.16 Solvency. On the Closing Date after giving effect to the Transactions, the Borrower and the Restricted Subsidiaries,
on a consolidated basis, are Solvent.
SECTION 5.17 USA PATRIOT Act; Anti-Terrorism Laws; FCPA. To the extent applicable, each
of the Borrower and the Restricted Subsidiaries are in compliance, in all material respects, with (1) the USA PATRIOT Act, (2) the FCPA and (3) the Trading with the Enemy Act, as amended, and each of the foreign assets control
regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended) and any other applicable enabling legislation or executive order relating thereto. Neither the Borrower nor any Restricted Subsidiary nor, to the
knowledge of the Borrower, any director, officer or employee of the Borrower or any of the Restricted Subsidiaries, is currently the subject of any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”) (“Sanctions”). No proceeds of the Loans will be used by the Borrower or any Restricted Subsidiary directly or, to the knowledge of the Borrower, indirectly, in violation of the FCPA or the USA PATRIOT
ACT, or for the purpose of financing activities of or with any Person, or in any country, that, at the time of such financing, is the subject of any Sanctions, except to the extent licensed or otherwise approved by OFAC.
SECTION 5.18 Collateral Documents. Except as otherwise contemplated hereby or under any other Loan Documents and subject to
limitations set forth in the Collateral and Guarantee Requirement, the provisions of the Collateral Documents, together with such filings and other actions required to be taken hereby or by the applicable Collateral Documents (including the delivery
to Collateral Agent of any Pledged Collateral required to be delivered pursuant hereto or the applicable Collateral Documents), are effective to create in favor of the Collateral Agent for the benefit of the Secured Parties a legal, valid, perfected
and enforceable first priority Lien (subject to Liens permitted by Section 7.01 and to any applicable Intercreditor Agreement) on all right, title and interest of the respective Loan Parties in the Collateral described
therein.
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Notwithstanding anything herein (including this Section 5.18) or
in any other Loan Document to the contrary, no Loan Party makes any representation or warranty as to (1) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or
security interest in any Equity Interests of any Foreign Subsidiary, or as to the rights and remedies of the Agents or any Lender with respect thereto, under foreign Law, (2) the pledge or creation of any security interest, or the effects of
perfection or non-perfection, the priority or the enforceability of any pledge of or security interest to the extent such pledge, security interest, perfection or priority is not required pursuant to the
Collateral and Guarantee Requirement, (3) on the Closing Date and until required pursuant to Section 4.01, 6.11 or 6.12, the pledge or creation of any security interest, or the effects of perfection or non-perfection, the priority or enforceability of any pledge or security interest to the extent not required on the Closing Date pursuant to Section 4.01 or (4) any Excluded Assets.
ARTICLE VI
Affirmative Covenants
So long as the Termination Conditions have not been satisfied, the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02 and 6.03) cause each of the Restricted Subsidiaries to:
SECTION 6.01 Financial
Statements. Deliver to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in
Section 6.02) each of the following:
(1) within ninety (90) days after the end of the fiscal year of the Borrower ending
December 31, 2026 , a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations and cash flows for such fiscal year, together with related
notes thereto, setting forth in each case, in comparative form the figures for the previous fiscal year, in reasonable detail and all prepared in accordance with GAAP, audited and accompanied by a report and audit opinion of an independent
registered public accounting firm of nationally recognized standing or another accounting firm reasonably acceptable to the Administrative Agent, which report and opinion (a) will be prepared in accordance with generally accepted auditing
standards and (b) will not be subject to any qualification as to the scope of such audit (except for any such qualification pertaining to, or disclosure of an exception or qualification resulting from (i) the maturity or impending maturity
of any Indebtedness, (ii) any anticipated inability to satisfy the Financial Covenants or any other financial covenant, (iii) an actual or prospective default of any financial covenant (including the Financial Covenants), (iv) changes in
accounting principles or practices reflecting changes in GAAP and required or approved by the Borrower’s or a Parent Company’s independent certified public accounting firm or (v) the activities, operations, financial results, assets
or liabilities of Unrestricted Subsidiaries) but may contain an emphasis of matter or a “going concern” explanatory paragraph or like statement (such report and opinion, a “Conforming Accounting Report”);
(2) within forty-five (45) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year, commencing with
the Fiscal Quarter ending June 30, 2026, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related (a) consolidated statement of income or operations for such fiscal quarter and
for the portion of the fiscal year then ended and (b) consolidated statement of cash flows for the portion of the fiscal year then ended;
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(3) [reserved]; and
(4) simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 6.01(1) and
6.01(2) (in the case of Section 6.01(2), for the avoidance of doubt, other than with respect to the final fiscal quarter of any fiscal year), the related unaudited (it being understood that such information may be audited at the
option of the Borrower) consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements.
Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) and 6.01(2) may be satisfied with respect to
financial information of the Borrower and its Subsidiaries by furnishing (a) the applicable financial statements of any Parent Company or (b) the Borrower’s or such Parent Company’s Form
10-K or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this
Section 6.01); provided that with respect to each of the preceding clauses (a) and (b), (i) to the extent such information relates to a Parent Company of the Borrower, if and so long as such Parent
Company has Independent Assets or Operations, such information is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such Parent Company and its
Independent Assets or Operations, on the one hand, and the information relating to the Borrower and the consolidated Restricted Subsidiaries on a stand-alone basis, on the other hand and (ii) to the extent such information is in lieu of
information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a Conforming Accounting Report;
provided further for so long as the Borrower or any Parent Company is required to file Form 10-K or 10-Q (or any similar form) with the SEC, if and to the
extent that the applicable deadlines required by the SEC for delivery of the Borrower’s or the applicable Parent Company’s Form 10-Q and/or 10-K (or any
similar form) (as applicable) for any period are later than the applicable deadlines for delivery set forth in Sections 6.01(1) and/or 6.01(2) for such period, such deadline set forth in Sections 6.01(1) and 6.01(2) shall
automatically be deemed to be replaced with such later deadlines as required by the SEC (without any further action or consent of any party to this Agreement).
Any financial statements required to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all
purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.
SECTION 6.02 Certificates; Other Information.
(1) Compliance Certificate. Deliver to the Administrative Agent for prompt further distribution by the Administrative Agent to each
Lender (subject to the limitations on distribution of any such information to Public Lenders as described in this Section 6.02), no later than five (5) Business Days after the delivery of the financial statements referred to in
Section 6.01(1) (commencing with such delivery for the fiscal year ending December 31, 2026) and Section 6.01(2) (in the case of Section 6.01(2), for the avoidance of doubt, other than with respect to the
final fiscal quarter of any fiscal year and commencing with such delivery for the fiscal quarter ending September 30, 2026), a duly completed Compliance Certificate signed by a Financial Officer of the Borrower.
(2) Other Information. Such other certificates, reports and information (financial or otherwise) as the Administrative Agent may
reasonably request from time to time regarding the financial condition or business of the Borrower and its Restricted Subsidiaries; provided, however, that none of the Borrower or any Restricted Subsidiary shall be required
to disclose or provide any information (a) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any of
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its subsidiaries or any of their respective borrowers, tenants or other occupants, joint venture partners,
customers and/or suppliers, (b) in respect of which disclosure to the Administrative Agent or any Lender (or any of their respective representatives) is prohibited by applicable Requirements of Law, (c) that is subject to attorney- client
or similar privilege or constitutes attorney work product, (d) in respect of which the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not
entered into in contemplation of the requirements of this Section 6.02(2)) or (e) to the extent applicable, which the Borrower or any Restricted Subsidiary is not reasonably able to obtain with respect to any obligor under any CRE
Finance Asset or tenant or other occupant under any Real Estate Investment.
Documents required to be delivered pursuant to
Section 6.01 or Section 6.02 may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (a) on which the Borrower posts such documents, or provides a link thereto, on the
Borrower’s (or any Parent Company’s) website on the Internet at the website address listed on Schedule 10.02 hereto (or as such address may be updated from time to time in accordance with Section 10.02); or (b) on
which such documents are posted on the 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 Borrower will deliver paper copies of such documents to the Administrative Agent for further distribution by the
Administrative Agent to each Lender (subject to the limitations on distribution of any such information to Public Lenders as described in this Section 6.02) until a written request to cease delivering paper copies is given by the
Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents or link and, upon the Administrative Agent’s request, 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 Borrower hereby acknowledges that (1) the Administrative
Agent will make available to the Lenders and the Issuing Banks materials or information provided by or on behalf of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on IntraLinks,
SyndTrak, ClearPar or another similar electronic system (the “Platform”) and (2) certain of the Lenders may have personnel who do not wish to receive any information with respect to the Borrower, its Subsidiaries or their
respective securities that is not Public-Side Information, and who may be engaged in investment and other market-related activities with respect to such Person’s securities (each, a “Public Lender”). The Administrative Agent
shall ensure that the Platform provides for, and that all Borrower Materials are marked by, a customary “watermark” identifying the first and last name and/or email address of any Person accessing Borrower Materials.
The Borrower hereby agrees that (1) at the Administrative Agent’s request, all Borrower Materials that are to be made available to
Public Lenders will be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” will appear prominently on the first page thereof, (2) by marking Borrower Materials
“PUBLIC”, the Borrower will be deemed to have authorized the Administrative Agent, the Lenders and the Issuing Banks to treat such Borrower Materials as containing only Public-Side Information (provided, however, that to
the extent such Borrower Materials constitute Information, they will be treated as set forth in Section 10.09), (3) all Borrower Materials marked “PUBLIC” and, except to the extent the Borrower notifies the
Administrative Agent to the contrary, any Borrower Materials provided pursuant to Sections 6.01(1), 6.01(2) or 6.02(1) are permitted to be made available through a portion of the Platform designated as “Public Side
Information” and (4) the Administrative Agent and the Arrangers shall be entitled to treat Borrower Materials that are not specifically identified as “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated as “Public Side Information”. Notwithstanding the foregoing, the Borrower shall be under no obligation to mark the Borrower Materials “PUBLIC”.
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Anything to the contrary notwithstanding, nothing in this Agreement will require the
Borrower or any Subsidiary to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter, or provide information (1) that constitutes
non-financial trade secrets or non-financial proprietary information, (2) in respect of which disclosure is prohibited by Law or binding agreement or (3) that
is subject to attorney-client or similar privilege or constitutes attorney work product; provided that in the event that the Borrower does not provide information that otherwise would be required to be provided hereunder in reliance on the
exclusions in this paragraph relating to violation of any obligation of confidentiality, the Borrower shall use commercially reasonable efforts to provide notice to the Administrative Agent promptly upon obtaining knowledge that such information is
being withheld (but solely if providing such notice would not violate such obligation of confidentiality).
SECTION 6.03
Notices. Promptly after a Responsible Officer of the Borrower obtains actual knowledge thereof, notify the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (subject to the limitations on
distribution of any such information to Public Lenders as described in Section 6.02) of:
(1) the occurrence of any Default or
Event of Default; and
(2) (a) any dispute, litigation, investigation or proceeding between any Loan Party and any arbitrator or
Governmental Authority, (b) the filing or commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any of its Restricted Subsidiaries or Plans, including pursuant to any applicable Environmental
Laws or in respect of Material Intellectual Property, (c) the occurrence of any Environmental Liability or any violation of or non-compliance with any Environmental Law by the Borrower or any of its
Restricted Subsidiaries or (d) the occurrence of any ERISA Event that, in any such case referred to in clauses (a), (b), (c) or (d) of this Section 6.03(2), has resulted or would reasonably be
expected to result in a Material Adverse Effect.
Each notice pursuant to this Section 6.03 shall be accompanied
by a written statement of a Responsible Officer of the Borrower (1) that such notice is being delivered pursuant to Section 6.03(1) or (2) (as applicable) and (2) setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
SECTION 6.04
Payment of Taxes. Timely pay, discharge or otherwise satisfy, as the same shall become due and payable, all of its obligations and liabilities in respect of Taxes imposed upon it or upon its income or profits or in respect of its property,
except, in each case, to the extent (1) any such Tax is being contested in good faith and by appropriate actions for which appropriate reserves have been established in accordance with GAAP or (2) the failure to pay or discharge the same
would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 6.05 Preservation
of Existence, Etc.
(1) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction
of its organization; and
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(2) take all reasonable action to obtain, preserve, renew and keep in full force and effect
its rights, licenses, permits, privileges, franchises and IP Rights material to the conduct of its business,
except in the case of
clause (1) or (2) to the extent (other than with respect to the preservation of the existence of the Borrower) that failure to do so would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or pursuant to any merger, consolidation, liquidation, dissolution or disposition permitted by Article VII.
SECTION 6.06 Maintenance of Properties. Except if the failure to do so would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, maintain, preserve and protect all of its material properties and equipment used in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty
or condemnation excepted and any repairs and replacements that are the obligation of the owner or landlord of any property leased by the Borrower or any of the Restricted Subsidiaries excepted.
SECTION 6.07 Maintenance of Insurance. Maintain with insurance companies that the Borrower believes (in the good faith judgment of
its management) are financially sound and reputable at the time the relevant coverage is placed or renewed or with a Captive Insurance Subsidiary, insurance with respect to the Borrower’s and the Restricted Subsidiaries’ properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business (as determined by the Borrower in good faith), of such types and in such amounts (after giving effect to any self-insurance
which the Borrower believes (in the good faith judgment of the management of the Borrower) is reasonable and prudent in light of the size and nature of their business) as are customarily carried under similar circumstances by such other Persons, and
will furnish to the Lenders, upon written request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried; provided that notwithstanding the foregoing, in no event will the Borrower or any
Restricted Subsidiary be required to obtain or maintain insurance that is more restrictive than its normal course of practice (as determined by the Borrower in good faith). Each such insurance policy maintained by a Loan Party in the United States
will, to the extent available from the relevant insurance carrier, as appropriate, (1) in the case of each general liability policy, name the Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its
interests may appear or (2) in the case of each casualty insurance policy, contain an additional loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as the additional lender loss payee
thereunder; provided that, notwithstanding anything to the contrary herein, to the extent that such requirements are not satisfied on the Closing Date, the Borrower may satisfy such requirements within ninety (90) days of the Closing
Date (as extended by the Collateral Agent in its reasonable discretion).
SECTION 6.08 Compliance with Laws. Comply with the
requirements of all Laws (including the USA PATRIOT Act, OFAC, the FCPA and Sanctions) and comply with all orders, writs, injunctions and decrees of any Governmental Authority applicable to it or to its business or property, except, in each case, if
the failure to comply therewith would not reasonably be expected individually or in the aggregate to have a Material Adverse Effect.
SECTION 6.09 Books and Records. Maintain proper books of record and account, in which entries that are full, true and correct in
all material respects shall be made of all material financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be (it being understood and agreed that certain Foreign
Subsidiaries may maintain individual books and records in conformity with generally accepted accounting principles in their respective countries of organization and that such maintenance shall not constitute a breach of the representations,
warranties or covenants hereunder).
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SECTION 6.10 Inspection Rights. Permit representatives and independent
contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom and to discuss its affairs, finances and accounts with its
directors, officers and independent public accountants (subject to such accountants’ customary policies and procedures), all at the reasonable expense of the Borrower and at such reasonable times during normal business hours and as often as
may be reasonably desired, upon reasonable advance notice to the Borrower; provided that only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 6.10 and the Administrative Agent
shall not exercise such rights more often than one (1) time during any calendar year absent the existence of an Event of Default under Section 8.01(1) or Section 8.01(6) with respect to the
Borrower and only one (1) such time shall be at the Borrower’s reasonable expense; provided further that to the extent any Event of Default under Section 8.01(1) or
Section 8.01(6) with respect to the Borrower exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the reasonable expense of the Borrower at any time
during normal business hours and upon reasonable advance notice. The Administrative Agent shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants. Any information obtained by
the Administrative Agent pursuant to this Section 6.10 shall be deemed “Information” for purposes of Section 10.09 and may be shared with the Collateral Agent or any Lender upon the
request of such Person. For the avoidance of doubt, this Section 6.10 is subject to the last paragraph of Section 6.02.
SECTION 6.11 Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense, subject to the provisions of
the Collateral and Guarantee Requirement and any applicable limitation in any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee
Requirement continues to be satisfied, including (in each case, as applicable, subject to the Excluded Subsidiary Joinder Exception):
(1)
(a) upon (i) the formation or acquisition of any new direct or indirect wholly owned Material Domestic Subsidiary (including upon the formation of any Material Domestic Subsidiary that is a Divided LLC) (other than any Excluded Subsidiary) by
any Loan Party, (ii) the designation of any existing direct or indirect wholly owned Material Domestic Subsidiary (other than any Excluded Subsidiary) as a Restricted Subsidiary, (iii) any Subsidiary (other than any Excluded Subsidiary)
becoming a wholly owned Material Domestic Subsidiary or (iv) an Excluded Subsidiary that is a wholly owned Material Domestic Subsidiary ceasing to be an Excluded Subsidiary but continuing as a wholly owned Material Domestic Subsidiary of the
Borrower, (b) upon the acquisition of any material assets by the Borrower or any Subsidiary Guarantor (other than Excluded Assets) or (c) with respect to any Subsidiary at the time it becomes a Loan Party, for any assets (other than
Excluded Assets) held by such Subsidiary (in each case, other than assets constituting Collateral under a Collateral Document that become subject to the Lien created by such Collateral Document upon acquisition thereof (without limitation of the
obligations to perfect such Lien)):
(A) within seventy-five (75) days after such formation, acquisition, designation
or other applicable event, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement to execute the Guaranty (or a joinder or supplement thereto), and other
documentation the Administrative Agent may reasonably request from time to time in order to carry out more effectively the purposes of the Guaranty and the Collateral Documents;
(B) within seventy-five (75) days after such formation, acquisition, designation or other applicable event, cause each
such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Collateral Agent any supplements to the Security Agreement, a counterpart
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signature page to the Intercompany Note, Intellectual Property Security Agreements and other security agreements and documents (if applicable), as reasonably requested by and in form and
substance reasonably satisfactory to the Collateral Agent (consistent with the Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Closing Date as amended and in effect from time to time), in
each case granting and perfecting Liens required by the Collateral and Guarantee Requirement;
(C) within seventy-five
(75) days after such formation, acquisition, designation or other applicable event, cause each such Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement 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, a joinder to the Intercompany Note substantially in the form of Annex I thereto with respect to the intercompany Indebtedness held by such Material Domestic Subsidiary and required to be pledged
pursuant to the Collateral Documents;
(D) within seventy-five (75) days after such formation, acquisition,
designation or other applicable event, take and cause (i) the applicable Material Domestic Subsidiary that is required to become a Subsidiary Guarantor pursuant to the Collateral and Guarantee Requirement and (ii) to the extent applicable,
each direct or indirect parent of such applicable Material Domestic Subsidiary, in each case, to take customary action(s) (including the filing of Uniform Commercial Code financing statements and delivery of stock and membership interest
certificates to the extent certificated) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and perfected (subject to
Liens permitted by Section 7.01 and to any applicable Intercreditor Agreement) Liens 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
(E) to the extent reasonably requested by the Administrative Agent, within seventy-five (75) days after such formation,
acquisition, designation or other applicable event, deliver to the Administrative Agent a signed copy of a customary Opinion of Counsel, addressed to the Administrative Agent and the Lenders, or counsel for the Loan Parties reasonably acceptable to
the Administrative Agent as to such matters set forth in this Section 6.11(1) as the Administrative Agent may reasonably request.
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(2) Material Real Property.
(a) Notice.
(i) Within ninety (90) days (or such longer period as the Collateral Agent may agree in its reasonable discretion) after
the formation, acquisition or designation of a Material Domestic Subsidiary that is required to become a Subsidiary Guarantor under the Collateral and Guarantee Requirement, the Borrower will, or will cause such Material Domestic Subsidiary to,
furnish to the Collateral Agent a description of any Material Real Property (other than any Excluded Asset(s)) owned by such Material Domestic Subsidiary.
(ii) Within ninety (90) days (or such longer period as the Collateral Agent may agree in its reasonable discretion) after
the acquisition of any Material Real Property (other than any Excluded Asset(s)) by a Loan Party, after the Closing Date, the Borrower will, or will cause such Loan Party to, furnish to the Collateral Agent a description of any such Material Real
Property.
(b) Mortgages. The Parent Borrower will, or will cause the applicable Loan Party to, provide the
Collateral Agent with a Mortgage with respect to any Material Real Property that is the subject of a notice delivered pursuant to Section 6.11(2)(a), within one hundred fifty (150) days of the acquisition, formation or
designation of such Material Domestic Subsidiary or the acquisition of such Material Real Property (or such longer period as the Collateral Agent may agree in its reasonable discretion), together with:
(i) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable
for filing or recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable in order to create, except to the extent otherwise provided hereunder, including subject to Liens permitted by
Section 7.01 and to any applicable Intercreditor Agreement, a valid and subsisting perfected Lien on such Material Real Property in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing
and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Collateral Agent;
(ii) fully paid American Land Title Association Lender’s title insurance policies (or marked up title commitments having
the effect of policies of title insurance) or the equivalent or other form available in each applicable jurisdiction (the “Mortgage Policies”) in form and substance, with endorsements available in the applicable jurisdiction (it
being agreed that zoning reports from a nationally recognized zoning company shall be acceptable in lieu of zoning endorsements to title policies in any jurisdiction where there is a material difference in the cost of zoning reports and zoning
endorsements) and in amounts, reasonably acceptable to the Collateral Agent (not to exceed the fair market value of the real properties covered thereby), issued, coinsured and reinsured by title insurers reasonably acceptable to the Collateral
Agent, insuring the Mortgages to be valid subsisting Liens on the property described therein, subject only to Liens permitted by Section 7.01 or any applicable Intercreditor Agreement or such other Liens reasonably
satisfactory to the Collateral Agent that do not have a material adverse impact on the use or value of the Mortgaged Properties, and providing for such other affirmative insurance and such coinsurance and direct access reinsurance as the Collateral
Agent may reasonably request and is available in the applicable jurisdiction;
(iii) customary Opinions of Counsel for the
applicable Loan Parties in states in which such Material Real Properties are located, with respect to the enforceability and perfection of the Mortgage(s) and any related fixture filings and the due authorization, execution and delivery of the
Mortgages, in form and substance reasonably satisfactory to the Collateral Agent;
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(iv) American Land Title/American Congress on Surveying and Mapping surveys
(or, if reasonably acceptable to the Collateral Agent, zip or express maps) for each Material Real Property or existing surveys together with no change affidavits, in each case certified to the Collateral Agent if deemed necessary by the Collateral
Agent in its reasonable discretion, sufficient for the title insurance company issuing a Mortgage Policy to remove the standard survey exception and issue standard survey related endorsements and otherwise reasonably satisfactory to the Collateral
Agent;
(v) a completed “Life of Loan” Federal Emergency Management Agency standard flood hazard determination
with respect to each Material Real Property containing improved land addressed to the Collateral Agent and otherwise in compliance with the Flood Insurance Laws; and
(vi) as promptly as practicable after the reasonable request therefor by the Collateral Agent, environmental assessment reports
and reliance letters (if any) that have been prepared in connection with such acquisition, designation or formation of any Material Domestic Subsidiary or acquisition of any Material Real Property; provided that there shall be no obligation
to deliver to the Collateral Agent any environmental assessment report whose disclosure to the Collateral Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries of Holdings, where, despite the commercially
reasonable efforts of the Borrower to obtain such consent, such consent cannot be obtained.
(3) Notwithstanding any provision of any Loan
Document to the contrary, if a mortgage tax or any similar tax or charge will be owed on the entire amount of the Secured Obligations evidenced hereby, then, to the extent permitted by, and in accordance with, applicable law, the amount of such
mortgage tax or any similar tax or charge shall be calculated based on the lesser of (x) the amount of the Secured Obligations allocated to the applicable Material Real Property and (y) the fair market value of the applicable Material Real
Property at the time the Mortgage is entered into and determined in a manner reasonably acceptable to Administrative Agent and the Borrower, which in the case of clause (y) will result in a limitation of the Secured Obligations secured
by the Mortgage to such amount.
(4) Notwithstanding anything to the contrary in this Section 6.11, the
Collateral Agent may grant one or more extensions of time from any time period set forth herein or grant one or more waivers for the taking of or causing any action, delivering or furnishing any notice, information, documents, insurance or opinions
or for the creation and perfection of any Liens in its reasonable discretion and any such extensions or waivers may, in the sole discretion of the Collateral Agent, be effective retroactively.
SECTION 6.12 Further Assurances and Post-Closing Covenant.
(1) Subject to the provisions of the Collateral and Guarantee Requirement and any applicable limitations in any Collateral Document and in
each case at the expense of the Borrower, promptly upon reasonable request from time to time by the Administrative Agent or the Collateral Agent or as may be required by applicable Laws (a) 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 (b) 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 Collateral Agent may reasonably request from time to time in order to satisfy the Collateral and Guarantee Requirement.
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(2) No later than ninety (90) days after the Closing Date or such later date as the
Administrative Agent reasonably agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Closing Date, deliver the documents or take the actions specified in Schedule 6.12(2), in each case except to the extent
otherwise agreed by the Collateral Agent pursuant to its authority as set forth in the definition of the term “Collateral and Guarantee Requirement”.
SECTION 6.13 Use of Proceeds. The proceeds of (1) the Closing Date Term Loans will be used for working capital and general
corporate purposes (including to pay the Transaction Expenses (including to fund OID or upfront fees in connection with the Closing Date Loans)), and for any other purpose not prohibited by the Loan Documents (including, without limitation, the
repayment of any Asset Financing Facility or CRE Financing) and (2) any Revolving Loans will be used for working capital and general corporate purposes and for any other purpose not prohibited by the Loan Documents (including, without
limitation, the repayment of any Asset Financing Facility or CRE Financing).
SECTION 6.14 Maintenance of Ratings. The
Borrower shall use commercially reasonable efforts to maintain public corporate credit facility and public corporate family ratings of the Borrower from any two of S&P, Moody’s and Fitch; provided that in no event shall the Borrower
be required to maintain any specific rating with any such agency.
SECTION 6.15 Transactions with Affiliates.
(1) Not make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Borrower (each of the foregoing, an “Affiliate
Transaction”) involving aggregate payments or consideration in excess of the greater of (a) $11,250,000 and (b) 0.25% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis), unless such Affiliate
Transaction is on terms, taken as a whole, that are not materially less favorable to the Borrower or the relevant Restricted Subsidiary than those that would have been obtained at such time in a comparable transaction by the Borrower or such
Restricted Subsidiary with a Person other than an Affiliate of the Borrower on an arm’s-length basis or, if in the good faith judgment of the Board of Directors no comparable transaction is available
with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Borrower or such Restricted Subsidiary from a financial point of view.
(2) The foregoing restriction will not apply to the following:
(a) (i) transactions between or among the Borrower and one or more Restricted Subsidiaries or between or among Restricted
Subsidiaries or, in any case, any Person that becomes a Restricted Subsidiary as a result of such transaction and (ii) any merger, consolidation or amalgamation of the Borrower and any Parent Company; provided that such merger, consolidation or
amalgamation of the Borrower is otherwise in compliance with the terms of this Agreement;
(b) (i) Restricted Payments
permitted by Section 7.05 (including any transaction specifically excluded from the definition of the term “Restricted Payments”, including pursuant to the exceptions contained in the definition thereof and the
parenthetical exclusions of such definition, but excluding any Restricted Payment permitted by Section 7.05(2)(n)(vi)), (ii) any Permitted Investment(s) or any acquisition otherwise permitted hereunder and
(iii) Indebtedness permitted by Section 7.02;
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(c) (i) the payment of management, consulting, monitoring, transaction,
advisory and other fees, indemnities and expenses pursuant to the Management Services Agreement (including any unpaid management, consulting, monitoring, transaction, advisory and other fees, indemnities and expenses accrued in any prior year) and
any termination fees pursuant to the Management Services Agreement, or any amendment thereto or replacement thereof so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the Board of Directors
to the Lenders when taken as a whole, as compared to the Management Services Agreement as in effect on the Closing Date; provided that recurring management or monitoring fees under any such agreement shall not be paid under this clause (c)(i)
during the continuance of an Event of Default under Section 8.01(1) or Section 8.01(6) with respect to the Borrower (it being understood that any such fees not paid on account of this proviso may
be paid on or after the cure, waiver or cessation of such Event of Default (any such deferred fees paid on or after the cure, waiver or cessation of such Event of Default, “Catch-Up Management
Fees”));
(ii) the payment of indemnification and similar amounts to, and reimbursement of expenses to, the
Manager, the Investor and any of their officers, directors, employees and Affiliates, in each case, approved by, or pursuant to arrangements approved by, the Board of Directors;
(iii) payments, loans, advances or guarantees (or cancellation of loans, advances or guarantees) to future, present or former
employees, officers, directors, managers, consultants or independent contractors or guarantees in respect thereof for bona fide business purposes or in the ordinary course of business or consistent with industry practice;
(iv) any subscription agreement or similar agreement pertaining to the repurchase of Equity Interests pursuant to put/call
rights or similar rights with current, former or future officers, directors, employees, managers, consultants and independent contractors of the Borrower, any Subsidiary or any Parent Company;
(v) any payment of compensation or other employee compensation, benefit plan or arrangement, any health, disability or similar
insurance plan which covers current, former or future officers, directors, employees, managers, consultants and independent contractors of the Borrower, any Subsidiary or any Parent Company (including the Manager or any of its Affiliates);
(d) the payment of fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements
provided to, or on behalf of or for the benefit of, present, future or former employees, directors, officers, members of management, consultants or independent contractors (or their respective Controlled Investment Affiliates or Immediate Family
Members or any permitted transferees thereof) of the Borrower, any Parent Company or any Restricted Subsidiary;
(e)
transactions in which the Borrower or any Restricted Subsidiary, as the case may be, delivers to the Administrative Agent a letter from an Independent Financial Advisor stating that such transaction is fair to the Borrower or such Restricted
Subsidiary from a financial point of view or stating that the terms, when taken as a whole, are not materially less favorable to the Borrower or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction
by the Borrower or such Restricted Subsidiary with a Person that is not an Affiliate of the Borrower on an arm’s-length basis;
(f) the existence of, or the performance by the Borrower or any Restricted Subsidiary of its obligations under the terms of,
any agreement as in effect as of the Closing Date, or any amendment thereto or replacement thereof (so long as any such amendment or replacement is not materially disadvantageous in the good faith judgment of the Board of Directors to the Lenders,
when taken as a whole, as compared to the applicable agreement as in effect on the Closing Date);
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(g) the existence of, or the performance by the Borrower or any Restricted
Subsidiary of its obligations under the terms of, any equity holders agreement or the equivalent (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Closing Date and any amendment
thereto and, similar agreements or arrangements that it may enter into thereafter; provided that the existence of, or the performance by the Borrower or any Restricted Subsidiary of obligations under, any future amendment to any such existing
agreement or arrangement or under any similar agreement or arrangement entered into after the Closing Date will only be permitted by this clause (g) to the extent that the terms of any such amendment or new agreement or arrangement are
not otherwise materially disadvantageous in the good faith judgment of the Board of Directors to the Lenders, when taken as a whole, as compared to the original agreement or arrangement in effect on the Closing Date;
(h) the Transactions and the payment of all fees and expenses related to the Transactions, including Transaction Expenses;
(i) transactions with customers, clients, suppliers, contractors, joint venture partners or purchasers or sellers of goods or
services, or transactions otherwise relating to the purchase or sale of goods or services, in each case in the ordinary course of business or consistent with industry practice and otherwise in compliance with the terms of this Agreement that are
fair to the Borrower and the Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the senior management of the Borrower, or are on terms at least as favorable as might reasonably have been obtained at such time from
an unaffiliated party;
(j) the issuance, sale or transfer of Equity Interests (other than Disqualified Stock) of the
Borrower or any Parent Company to any Person and the granting and performing of customary rights (including registration rights) in connection therewith, and any contribution to the capital of the Borrower;
(k) sales of accounts receivable, or participations therein, or Securitization Assets or related assets in connection with any
Qualified Securitization Facility and any other transaction effected in connection with a Qualified Securitization Facility or a financing related thereto;
(l) payments to Affiliates of the Borrower (or the Manager or Affiliates thereof) by the Borrower or any Restricted Subsidiary
made for any financial advisory, consulting, financing, underwriting or placement services or in respect of other investment banking activities, including in connection with acquisitions or divestitures, which payments are approved by, or made
pursuant to arrangements approved by, a majority of the Board of Directors in good faith;
(m) payments with respect to
Indebtedness, Disqualified Stock and other Equity Interests (and cancellation of any thereof) of the Borrower, any Parent Company and any Restricted Subsidiary and Preferred Stock (and cancellation of any thereof) of any Restricted Subsidiary to any
future, current or former employee, director, officer, member of management, consultant or independent contractor (or their respective Controlled Investment Affiliates or Immediate Family Members or permitted transferees) of the Borrower, any of its
Subsidiaries or any Parent Company pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any equity subscription or equity holder
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agreement that are, in each case, approved by the Borrower in good faith; and any employment agreements, severance arrangements, 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, members of management, consultants or independent contractors (or their respective Controlled Investment
Affiliates or Immediate Family Members or any permitted transferees thereof) that are, in each case, approved by the Borrower in good faith;
(n) [reserved];
(o) payments to or from, and transactions with, any joint venture or Unrestricted Subsidiary in the ordinary course of business
or consistent with past practice, industry practice or industry norms (including, any cash management activities related thereto);
(p) payments by the Borrower (and any Parent Company) and its Subsidiaries pursuant to tax sharing agreements among the
Borrower (and any Parent Company) and its Subsidiaries; provided that payments by the Borrower are permitted under Section 7.05(2)(n);
(q) any lease entered into between the Borrower or any Restricted Subsidiary, as lessee, and any Affiliate of the Borrower, as
lessor, and any transaction(s) pursuant to that lease, which lease is approved by the Board of Directors or senior management of the Borrower in good faith;
(r) licenses or sublicenses of IP Rights in the ordinary course of business or consistent with industry practice and not
otherwise in contravention of the other provisions of this Agreement;
(s) the payment of reasonable out-of-pocket costs and expenses relating to registration rights and indemnities provided to equity holders of the Borrower or any Parent Company pursuant to any equity
holders agreement or registration rights agreement entered into on or after the Closing Date;
(t) transactions permitted
by, and complying with, Section 7.03 solely for the purpose of (i) reorganizing to facilitate any initial public offering of securities of the Borrower or any Parent Company, (ii) forming a holding company or
(iii) reincorporating the Borrower in a new jurisdiction;
(u) transactions undertaken in good faith (as determined by
the Board of Directors or certified by senior management of the Borrower in an Officer’s Certificate) for the purposes of improving the consolidated tax efficiency of the Borrower and its Restricted Subsidiaries and not for the purpose of
circumventing Articles VI and VII of this Agreement; so long as such transactions, when taken as a whole, do not result in a material adverse effect on the Liens on the Collateral granted by the Loan Parties in favor of the Secured
Parties, when taken as a whole, in each case, as determined in good faith by the Board of Directors or certified by senior management of the Borrower in an Officer’s Certificate;
(v) (i) transactions with a Person that is an Affiliate of the Borrower (other than an Unrestricted Subsidiary) solely because
the Borrower or any Restricted Subsidiary owns Equity Interests in such Person and (ii) transactions with any Person that is an Affiliate solely because a director or officer of such Person is a director or officer of the Borrower, any
Restricted Subsidiary or any Parent Company;
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(w) (i) pledges and other transfers of Equity Interests in Unrestricted
Subsidiaries and (ii) any transactions with an Affiliate in which the consideration paid consists solely of Equity Interests of the Borrower or a Parent Company;
(x) the sale, issuance or transfer of Equity Interests (other than Disqualified Stock) of the Borrower;
(y) [reserved];
(z) payments in respect of (i) the Obligations (or any Credit Agreement Refinancing Indebtedness) or (ii) other
Indebtedness, Disqualified Stock or Preferred Stock of the Borrower and its Subsidiaries held by Affiliates; provided that such obligations were acquired by an Affiliate of the Borrower in compliance herewith; and
(aa) transactions undertaken in the ordinary course of business or consistent with industry practice pursuant to membership in
a purchasing consortium.
SECTION 6.16 Environmental.
(1) Environmental Disclosure. The Borrower will deliver to the Administrative Agent as soon as practicable following the sending or
receipt thereof by any Responsible Officer of the Borrower, written notice of (a) any Environmental Claim that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (b) any Release required to
be reported by the Borrower or any of the Restricted Subsidiaries to any federal, state or local governmental or regulatory agency or other Governmental Authority that reasonably could be expected to have a Material Adverse Effect, (c) any
request made to the Borrower or any of the Restricted Subsidiaries for information from any governmental agency that suggests such agency is investigating whether the Borrower or any of the Restricted Subsidiaries may be potentially responsible for
any Hazardous Materials Activity which is reasonably expected to have a Material Adverse Effect and (d) subject to the limitations set forth above in the proviso in Section 6.02(2), such other documents and information as from time
to time may be reasonably requested by the Administrative Agent in relation to any matters disclosed pursuant to this Section 6.17(1).
(2) Hazardous Materials Activities, Etc. Subject to the rights of tenants or other occupants of any Real Estate Investment and obligors
of any CRE Finance Asset, the Borrower shall promptly take, and shall cause each of the Restricted Subsidiaries promptly to take, any and all actions necessary to (a) cure any violation of applicable Environmental Laws by the Borrower or the
Restricted Subsidiaries, and address with appropriate corrective or remedial action any known Release or threatened Release of Hazardous Materials at or from any Facility, in each case, that could reasonably be expected to have a Material Adverse
Effect and (b) make an appropriate response to any Environmental Claim against the Borrower or any of the Restricted Subsidiaries in their individual capacities and discharge any obligations it may have to any Person thereunder, in each case,
where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
ARTICLE VII
Negative Covenants
So long as the Termination Conditions are not satisfied:
SECTION 7.01 Liens. The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, directly or indirectly,
create, incur or assume any Lien (except any Permitted Lien(s)) that secures obligations under any Indebtedness or any related guarantee of Indebtedness on any asset or property of the Borrower or any Restricted Subsidiary, or any income or profits
therefrom.
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The expansion of Liens by virtue of accretion or amortization of original issue discount,
the payment of dividends in the form of Indebtedness, and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will not be deemed to be an incurrence of Liens for purposes of this
Section 7.01.
SECTION 7.02 Indebtedness.
(1) The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, directly or indirectly:
(a) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise
(collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness), or
(b) issue any shares of Disqualified Stock or permit any Restricted Subsidiary to issue any shares of Disqualified Stock or
Preferred Stock.
(2) The provisions of Section 7.02(1) will not apply to:
(a) Indebtedness under the Loan Documents (including Incremental Loans, Other Loans, Extended Term Loans, Loans made pursuant
to Extended Revolving Commitments and Replacement Loans);
(b) commercial or trade letters of credit (in each case, for the
avoidance of doubt, to the extent constituting Indebtedness) not issued under the Revolving Facility (and reimbursement and backstop obligations in connection therewith) in an aggregate amount under this clause (b) not to exceed L/C
Sublimit Availability at the time incurred;
(c) the incurrence of Indebtedness by the Borrower or any Restricted
Subsidiary in existence on the Closing Date (excluding Indebtedness described in the preceding clauses (a) and (b)); provided that any such item of Indebtedness for borrowed money with an individual outstanding principal
amount on the Closing Date in excess of $25,000,000 (individually) shall be set forth on Schedule 7.02;
(d) the
incurrence of Attributable Indebtedness and Indebtedness (including Finance Lease Obligations and Purchase Money Obligations) and Disqualified Stock incurred or issued by the Borrower or any Restricted Subsidiary and Preferred Stock issued by any
Restricted Subsidiary, to finance the purchase, lease, expansion, construction, installation, replacement, repair or improvement of property (real or personal), equipment or other assets, including assets that are used or useful in a Similar
Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets in an aggregate principal amount outstanding in the case of this clause (d), together with any outstanding Refinancing Indebtedness
in respect thereof (excluding any Incremental Amounts) and all other Indebtedness, Disqualified Stock or Preferred Stock incurred or issued and outstanding under this clause (d) at such time, not to exceed the greater of (i) $16,250,000
and (ii) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis);
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(e) Indebtedness incurred by the Borrower or any Restricted Subsidiary
(i) constituting reimbursement obligations with respect to letters of credit, bank guarantees, banker’s acceptances, warehouse receipts, or similar instruments issued or entered into, or relating to obligations or liabilities incurred, in
the ordinary course of business or consistent with industry practice, including in respect of workers’ compensation claims, performance, completion or surety bonds, health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance, unemployment insurance or other social security legislation or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, performance, completion or surety
bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or (ii) as an account party in respect of letters of credit, bank guarantees or similar instruments in favor of suppliers, trade
creditors or other Persons issued or incurred in the ordinary course of business or consistent with industry practice;
(f)
(i) the incurrence of Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnouts, other contingent consideration obligations and other deferred purchase
price or similar obligations, in each case, incurred or assumed in connection with Investments or the acquisition or Disposition (including Investments, acquisitions and Dispositions consummated prior to the Closing Date) of any business, assets or
a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition, (ii) seller notes or other Indebtedness owed to the
seller of any business or assets in an aggregate outstanding principal amount not to exceed the greater of (A) $45,000,000 and (B) 1.0% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) and
(iii) unsecured seller notes or other Indebtedness owed to the seller of any business or assets so long as such seller note or other Indebtedness incurred under this clause (iii) does not have (A) a final maturity date prior to
the Original Term Loan Maturity Date and/or (B) a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Closing Date Term Loans;
(g) the incurrence of Indebtedness by the Borrower and owing to a Restricted Subsidiary or the issuance of Disqualified Stock
of the Borrower to a Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to any Restricted Subsidiary); provided that any such Indebtedness for borrowed money owing to a Restricted Subsidiary that is
not a Guarantor is expressly subordinated in right of payment to the Loans to the extent permitted by applicable law on terms reasonably agreed between the Borrower and the Administrative Agent; provided further that any subsequent issuance or
transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness or Disqualified Stock (except to the Borrower or another
Restricted Subsidiary or any pledge of such Indebtedness or Disqualified Stock constituting a Permitted Lien) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) or issuance of
such Disqualified Stock (to the extent such Disqualified Stock is then outstanding) not permitted by this clause (g);
(h) the incurrence of Indebtedness of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary (or to any
Parent Company which is substantially contemporaneously transferred to the Borrower or any Restricted Subsidiary) to the extent not prohibited by Section 7.05 and if, in the case of any incurrence of Indebtedness of a
Restricted Subsidiary that is not a Loan Party owing to another Restricted Subsidiary that is a Loan Party, the related Investment is permitted by Section 7.05; provided that any such Indebtedness for borrowed money
incurred by a Guarantor and owing to a Restricted Subsidiary that is not a Guarantor is expressly subordinated in right of payment to the Guaranty of the Loans of such Guarantor to the
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extent permitted by applicable law; provided further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be
a Restricted Subsidiary or any such subsequent transfer of any such Indebtedness (except to the Borrower or a Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien) will be deemed, in each case, to be an incurrence
of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this clause (h);
(i)
the issuance of shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary to the Borrower or a Restricted Subsidiary (or to any Parent Company which is substantially contemporaneously transferred to the Borrower or any Restricted
Subsidiary) if, in the case of any issuance of shares of Preferred Stock or Disqualified Stock of a Restricted Subsidiary that is not a Loan Party to another Restricted Subsidiary that is a Loan Party, the related Investment is permitted by
Section 7.05; provided that any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Restricted Subsidiary that holds such Preferred Stock or Disqualified Stock ceasing to
be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock or Disqualified Stock (except to the Borrower or another Restricted Subsidiary or any pledge of such Preferred Stock or Disqualified Stock constituting
a Permitted Lien) will be deemed, in each case, to be an issuance of such shares of Preferred Stock or Disqualified Stock (to the extent such Preferred Stock or Disqualified Stock is then outstanding) not permitted by this clause (i);
(j) the incurrence of Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(k) the incurrence of obligations in respect of self-insurance and obligations in respect of performance, bid, appeal and
surety bonds and performance, banker’s acceptance facilities and completion guarantees and similar obligations provided by the Borrower or any Restricted Subsidiary 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 industry practice, including those incurred to secure health, safety and environmental obligations;
(l) the incurrence of:
(i) (A) Indebtedness or issuance of Disqualified Stock of the Borrower and the incurrence or issuance of Indebtedness,
Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference up to 200.0% of the net cash or Cash Equivalent proceeds, the fair market value of marketable securities or the fair market
value of Qualified Proceeds received by the Borrower since the Closing Date from the issue or sale of Equity Interests of the Borrower or contributions to the capital of the Borrower, including through consolidation, amalgamation or merger (in each
case, other than proceeds of any Excluded Contribution, Disqualified Stock or any exercise of the cure right set forth in Section 8.04 and other than proceeds received from the Borrower or a Restricted Subsidiary) as
determined in accordance with clauses (b)(ii) and (b)(iii) of Section 7.05(1) to the extent such net cash proceeds or cash or other property have not been applied pursuant to such clauses to make Restricted
Payments pursuant to Section 7.05(1) or as a Cure Amount) and (B) Indebtedness in an aggregate principal amount or liquidation preference not to exceed the greater of (I) the greater of (1) $112,500,000 and (2)
2.5% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) and (II) 100.0% of the aggregate amount of Restricted Payments of the type described in clause (w) or (x) of
Section 7.05(1) that could be made at the time of determination in compliance with Section 7.05 (provided that any utilization of this clause (B) shall be in lieu of, and shall reduce the
permitted amount of, such Restricted Payments under Section 7.05, on a dollar for dollar basis, to the extent such Indebtedness, Disqualified Stock or Preferred Stock remains outstanding from time to time); and
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(ii) Indebtedness or issuance of Disqualified Stock of the Borrower and the
incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock of any Restricted Subsidiary in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount and liquidation preference of all
other Indebtedness, Disqualified Stock and Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (l)(ii), together with any Refinancing Indebtedness in respect thereof (excluding any Incremental
Amounts), does not exceed (as of the date such Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) (a) the greater of (i) $60,000,000 and (ii) 1.325% of Total Assets for the most recently ended Test
Period (calculated on a pro forma basis) plus, without duplication, (b) in the event of any extension, replacement, refinancing, renewal or defeasance of any such Indebtedness, Disqualified Stock or Preferred Stock, an amount
equal to (i) any accrued and unpaid interest on the Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued and unpaid dividends on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed
or defeased plus (ii) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such Indebtedness, Disqualified Stock or Preferred Stock and any defeasance costs
and any fees and expenses (including original issue discount, upfront fees, underwriting, arrangement and similar fees) incurred in connection with the issuance of such new Indebtedness, Disqualified Stock or Preferred Stock or the extension,
replacement, refunding, refinancing, renewal or defeasance of such Indebtedness, Disqualified Stock or Preferred Stock, minus (c) any General Debt Basket Reallocated Amount (this clause (l)(ii), the “General Debt
Basket”);
(m) the incurrence or issuance by the Borrower of Refinancing Indebtedness or the incurrence or
issuance by a Restricted Subsidiary of Refinancing Indebtedness that serves to Refinance any Indebtedness (including any Designated Revolving Commitments) permitted under Section 7.02(1) above, Sections 7.02(2)(c),
(d) and (l) above, this Section 7.02(2)(m) and Sections 7.02(2)(n), (w), (dd)(ii), (ee), (ff), (gg), (hh) and (jj) below, or any successive
Refinancing Indebtedness with respect to any of the foregoing;
(n) the assumption of Indebtedness, Disqualified Stock or
Preferred Stock (i) of Persons that are acquired by the Borrower or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement or
(ii) that is assumed by the Borrower or any Restricted Subsidiary in connection with such acquisition or investment (or other purchase of assets) permitted under this Agreement (and not, for the avoidance of doubt, created in contemplation of
the applicable investment or acquisition), in each case in an aggregate outstanding principal amount or liquidation preference, together with any outstanding Refinancing Indebtedness in respect of any of the foregoing (excluding any Incremental
Amounts), so long as either (A) the Borrower is in compliance with the LTV Covenant or (B) the Total Debt to Total Assets Ratio as of the last day of the most recently ended Test Period is no greater than immediately prior to the
establishment or incurrence of such Indebtedness, in each case, determined on a pro forma basis and, in the case of an incurrence of Assumed Acquisition Debt in the form of revolving commitments, assuming such revolving commitments are fully
drawn (any Indebtedness, Disqualified Stock or Preferred Stock assumed pursuant to clause (n), “Assumed Acquisition Debt”);
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(o) the incurrence of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with industry practice;
(p) the incurrence of Indebtedness of the Borrower or any Restricted Subsidiary supported by letters of credit or bank
guarantees issued in connection herewith, any Credit Agreement Refinancing Indebtedness, any Permitted Incremental Equivalent Debt or any Additional Letter of Credit Facility, in each case, in a principal amount not in excess of the maximum amount
available to be drawn (not to exceed the applicable stated amount thereof) on such letters of credit or bank guarantees;
(q) (i) the incurrence of any guarantee by the Borrower or a Restricted Subsidiary of Indebtedness or other obligations of the
Borrower or any Restricted Subsidiary so long as the incurrence of such Indebtedness or other obligations incurred by the Borrower or such Restricted Subsidiary is permitted by this Agreement or (ii) any
co-issuance by the Borrower or any Restricted Subsidiary of any Indebtedness or other obligations of the Borrower or any Restricted Subsidiary so long as the incurrence of such Indebtedness or other
obligations by the Borrower or such Restricted Subsidiary is permitted by this Agreement;
(r) the incurrence of
Indebtedness issued by the Borrower or any Restricted Subsidiary to future, present or former employees, directors, officers, members of management, consultants and independent contractors thereof, their respective Controlled Investment Affiliates
or Immediate Family Members and permitted transferees thereof, in each case to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Company to the extent described in, and in accordance with,
Section 7.05(2)(d);
(s) customer deposits and advance payments received in the ordinary course
of business or consistent with industry practice from customers for goods and services purchased in the ordinary course of business or consistent with industry practice;
(t) the incurrence of (i) Indebtedness owed to banks and other financial institutions incurred in the ordinary course of
business or consistent with industry practice in connection with ordinary banking arrangements to manage cash balances of the Borrower or its Restricted Subsidiaries (including short-term pooling and similar intercompany arrangements in respect of
accounts held by Foreign Subsidiaries) and (ii) Indebtedness in respect of Cash Management Services, including Cash Management Obligations;
(u) Indebtedness incurred by the Borrower or a Restricted Subsidiary in connection with bankers’ acceptances, discounted
bills of exchange or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business or consistent with industry practice on
arm’s-length commercial terms;
(v) the incurrence of Indebtedness of the
Borrower or any Restricted Subsidiary 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 industry practice;
(w) the incurrence of
Indebtedness by the Borrower or any Restricted Subsidiary in connection with any joint venture arrangements and similar binding arrangements, in each case, in an aggregate principal amount or liquidation preference that, when aggregated with the
principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and
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Preferred Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (w), together with any outstanding Refinancing Indebtedness in respect of any of the
foregoing (excluding any Incremental Amounts), does not exceed (as of the date such Indebtedness is issued, incurred or otherwise obtained) the greater of (i) $18,000,000 and (ii) 0.40% of Total Assets for the most recently ended Test Period
(calculated on a pro forma basis);
(x) the incurrence of Indebtedness by the Borrower or any Restricted Subsidiary
undertaken in connection with cash management (including netting services, automatic clearinghouse arrangements, overdraft protections, employee credit card programs and related or similar services or activities) with respect to the Borrower, any
Subsidiary or any joint venture in the ordinary course of business or consistent with industry practice, including with respect to financial accommodations of the type described in the definition of “Cash Management Services”;
(y) to the extent constituting Indebtedness, Indebtedness incurred by a Securitization Subsidiary in any Qualified
Securitization Facilities that are not recourse (except for Standard Securitization Undertakings) to the Borrower or any of its Restricted Subsidiaries;
(z) guarantees incurred in the ordinary course of business or consistent with industry practice in respect of obligations to
suppliers, customers, franchisees, lessors, licensees, sub-licensees and distribution partners;
(aa) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the
settlement of any claims or actions (whether actual, contingent or potential) with respect to the Transactions or any other acquisition (by merger, consolidation or amalgamation or otherwise) in accordance with the terms hereof;
(bb) the incurrence of Indebtedness representing deferred compensation to employees of any Parent Company, the Borrower or any
Restricted Subsidiary, including Indebtedness consisting of obligations under deferred compensation or any other similar arrangements incurred in connection with the Transactions, any investment or any acquisition (by merger, consolidation or
amalgamation or otherwise) permitted under this Agreement;
(cc) the incurrence of Indebtedness arising out of any
Sale-Leaseback Transaction incurred in the ordinary course of business or consistent with industry practice;
(dd) (i)
Credit Agreement Refinancing Indebtedness and (ii) Permitted Incremental Equivalent Debt and any permitted refinancing in respect of the foregoing;
(ee) the incurrence of Indebtedness, Disqualified Stock or Preferred Stock by Restricted Subsidiaries of the Borrower that are
not Guarantors to fund working capital requirements in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred
Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (ee), together with any Refinancing Indebtedness in respect thereof (excluding any Incremental Amounts), does not exceed (as of the date such Indebtedness,
Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) the greater of (i) $11,250,000 and (ii) 0.25% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis);
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(ff) the incurrence of Indebtedness, Disqualified Stock or Preferred Stock
by Foreign Subsidiaries and Foreign Subsidiary Holdcos in an aggregate principal amount or liquidation preference that, when aggregated with the principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and Preferred
Stock then outstanding and incurred or issued, as applicable, pursuant to this clause (ff), together with any Refinancing Indebtedness with respect thereof (excluding any Incremental Amounts), does not exceed (as of the date such
Indebtedness, Disqualified Stock or Preferred Stock is issued, incurred or otherwise obtained) the greater of (i) $11,250,000 and (ii) 0.25% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis);
(gg) Indebtedness in respect of any Additional Letter of Credit Facility in an aggregate principal or face amount at any time
outstanding not to exceed the greater of (i) $11,250,000 and (ii) 0.25% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis);
(hh) Indebtedness, Disqualified Stock or Preferred Stock (i) of Persons that are acquired by the Borrower or any
Restricted Subsidiary or merged into, amalgamated or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms of this Agreement or (ii) that is assumed by the Borrower or any Restricted Subsidiary in connection
with such acquisition or investment (or other purchase of assets) (and not, for the avoidance of doubt, created in contemplation of the applicable investment or acquisition), in each case in an aggregate outstanding principal amount or liquidation
preference, together with any outstanding Refinancing Indebtedness in respect of any of the foregoing (excluding any Incremental Amounts), not to exceed the greater of (A) $18,000,000 and (B) 0.40% of Total Assets for the most recently ended Test
Period (calculated on a pro forma basis);
(ii) the incurrence of Specified Letter of Credit Obligations;
(jj) Indebtedness of any Restricted Subsidiary that is not a Loan Party under any Asset Financing Facility or CRE Financing
(and any Guarantees and co-borrower obligations of the Borrower, any Restricted Subsidiary that is a Loan Party or any Restricted Subsidiary that is not a Loan Party, in each case, with respect to the
foregoing), in each case, (i) to the extent that such Indebtedness and obligations are not secured by the assets of any Loan Party (other than Capital Stock held by such Loan Party that constitutes Capital Stock issued by any Person that is not
a Loan Party and is an obligor, or provides credit support, with respect to such Indebtedness) and (ii) so long as the Borrower is in compliance with the LTV Covenant; and
(kk) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent
interest on obligations described in clauses (a) through jj) above.
(3) For purposes of determining
compliance with this Section 7.02:
(a) the principal amount of Indebtedness outstanding under
any clause of this Section 7.02 will be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; and
(b) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that are otherwise included in the
determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; provided that the incurrence of the Indebtedness represented by such guarantee or letter of credit, as the case may be,
was incurred in compliance with this Section 7.02.
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The accrual of interest or dividends, the accretion of accreted value, the accretion or
amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness, Disqualified Stock or Preferred Stock and increases in the amount of Indebtedness outstanding solely as a result of fluctuations
in the exchange rate of currencies, in each case, will not be deemed to be an incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section 7.02. Any Indebtedness incurred, or Disqualified
Stock or Preferred Stock issued, to refinance Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, pursuant to Section 7.02(1) or clauses (c), (d), (l), (m), (n),
(w), (dd)(ii), (ee), (ff), (gg) and (hh) of Section 7.02(2) will be permitted to include additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay
(I) any accrued and unpaid interest on the Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued and unpaid dividends on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or
defeased and (II) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument or documents governing such refinanced Indebtedness, Preferred Stock or Disqualified Stock and any defeasance costs
and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance of such new Indebtedness, Preferred Stock or Disqualified Stock or the extension, replacement, refunding,
refinancing, renewal or defeasance of such refinanced Indebtedness, Preferred Stock or Disqualified Stock (and with respect to Indebtedness under Designated Revolving Commitments, including an amount equal to any unutilized Designated Revolving
Commitments being refinanced, extended, replaced, refunded, renewed or defeased to the extent permanently terminated at the time of incurrence of such Refinancing Indebtedness).
For purposes of determining compliance with any Dollar denominated restriction on the incurrence of Indebtedness or issuance of Disqualified
Stock or Preferred Stock, the Dollar equivalent principal amount of Indebtedness or liquidation preference of Disqualified Stock or amount of Preferred Stock denominated in a foreign currency will be calculated based on the relevant currency
exchange rate in effect on the date such Indebtedness, Disqualified Stock or Preferred Stock was incurred or issued (or, in the case of revolving credit debt, the date such Indebtedness was first committed or first incurred (whichever yields the
lower Dollar equivalent)); provided that if such Indebtedness, Disqualified Stock or Preferred Stock is issued to Refinance other Indebtedness, Disqualified Stock or Preferred Stock denominated in a foreign currency, and such refinancing
would cause the applicable Dollar denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar denominated restriction will be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness, Disqualified Stock or Preferred Stock does not exceed (a) the principal amount of such Indebtedness, the liquidation preference of such Disqualified Stock or the amount of such
Preferred Stock (as applicable) being refinanced, extended, replaced, refunded, renewed or defeased plus (b) any accrued and unpaid interest on the Indebtedness, any accrued and unpaid dividends on the Preferred Stock, and any accrued
and unpaid dividends on the Disqualified Stock being so refinanced, extended, replaced, refunded, renewed or defeased, plus (c) the amount of any tender premium or penalty or premium required to be paid under the terms of the instrument
or documents governing such refinanced Indebtedness, Preferred Stock or Disqualified Stock and any defeasance costs and any fees and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with the issuance
of such new Indebtedness, Preferred Stock or Disqualified Stock or the extension, replacement, refunding, refinancing, renewal or defeasance of such refinanced Indebtedness, Preferred Stock or Disqualified Stock (and with respect to Indebtedness
under Designated Revolving Commitments, including an amount equal to any unutilized Designated Revolving Commitments being refinanced, extended, replaced, refunded, renewed or defeased to the extent permanently terminated at the time of incurrence
of such Refinancing Indebtedness).
The principal amount of any Indebtedness incurred or Disqualified Stock or Preferred Stock issued to
refinance other Indebtedness, Disqualified Stock or Preferred Stock, if incurred or issued in a different currency from the Indebtedness, Disqualified Stock or Preferred Stock, as applicable, being refinanced, will be calculated based on the
currency exchange rate applicable to the currencies in which such respective
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Indebtedness or Disqualified Stock or Preferred Stock is denominated that is in effect on the date of such refinancing. The principal amount of any
non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date will be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date
prepared in accordance with GAAP.
SECTION 7.03 Fundamental Changes. The Borrower shall not, nor shall the Borrower permit any
Restricted Subsidiary to, consolidate, amalgamate or merge with or into or wind up into another Person, or liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) 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:
(1) any Restricted Subsidiary may merge or consolidate with the Borrower (including a merger the purpose of which is to reorganize the Borrower
into a new jurisdiction); provided that:
(a) the Borrower shall be the continuing or surviving Person and
(b) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States,
any state thereof or the District of Columbia,
(2) (a) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with
or into any other Restricted Subsidiary that is not a Loan Party;
(b) any Restricted Subsidiary may merge or consolidate
with or into any other Restricted Subsidiary that is a Loan Party; provided that such Loan Party shall be the continuing or surviving Person;
(c) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another
jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change
its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a
Guarantor shall be a Loan Party or such disposition shall otherwise not be prohibited by Section 7.04 and Section 7.05;
(3) any Restricted Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower
or another Restricted Subsidiary; provided that any such disposition (upon voluntary liquidation or otherwise) by any Loan Party to any Restricted Subsidiary that is not a Loan Party shall otherwise not be prohibited under
Section 7.04 and Section 7.05;
(4) so long as no Event of Default has occurred and is
continuing or would result therefrom, the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) the Borrower shall be the continuing or surviving Person or
(b) if the Person formed by or surviving any such merger or consolidation is not the Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person,
a “Successor Borrower”):
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(i) such Successor Borrower will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the
Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or
other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) if reasonably requested by the Administrative Agent, an Opinion of Counsel including customary organization, due
execution, no conflicts, collateral and enforceability opinions;
(ii) substantially contemporaneously with such
transaction (or at a later date as agreed by the Administrative Agent),
(A) each Guarantor, unless it is the other party
to such merger or consolidation, will by a supplement to the Guaranty (or in another form and substance reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor
Borrower’s obligations under this Agreement) and
(B) each Loan Party, unless it is the other party to such merger
or consolidation (and not surviving such merger or consolidation), will, by a supplement to the Security Agreement (or in another form and substance reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder; and
(iii) to the extent reasonably requested by the Administrative Agent or any Lender, the Administrative Agent and such
Lender shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Borrower (including, if the Successor Borrower qualifies as a
“legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Successor Borrower) required under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act;
provided further that if the foregoing are satisfied, the Successor Borrower will
succeed to, and be substituted for, the Borrower under this Agreement and in the case of the disposition of all or substantially all assets otherwise not prohibited hereunder, the original Borrower will be released;
(5) [reserved];
(6) any
Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other Investment permitted pursuant to
Section 7.05;
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(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which
is to effect a disposition permitted pursuant to Section 7.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of “Asset
Sale”) shall be permitted;
(8) the Borrower and any Restricted Subsidiary may (a) convert into a corporation, partnership,
limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions; and
(10) (a) the formation, dissolution, liquidation or disposition of any Subsidiary that is a Divided LLC and (b) any disposition to effect
the formation of any Subsidiary that is a Divided LLC which disposition is not otherwise prohibited hereunder shall be permitted; provided that in each case upon formation of a Divided LLC, the Borrower complies with
Section 6.11 with respect to such Divided LLC to the extent applicable.
SECTION 7.04 Asset Sales.
The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, consummate any Asset Sale, except:
(1) Asset Sales so
long as:
(a) the Borrower 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 in connection with such Asset Sale) at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale)
of the assets sold or otherwise disposed of, and
(b) except in the case of a Permitted Asset Swap, with respect to any
Asset Sale pursuant to this Section 7.04(1) for a purchase price in excess of the greater of (x) $16,250,000 and (y) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis), at
least 75.0% of the consideration for such Asset Sale, together with all other Asset Sales since the Closing Date (on a cumulative basis), received by the Borrower or a Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents; provided that each of the following will be deemed to be cash or Cash Equivalents for purposes of this clause (b):
(i) any liabilities (as shown on the Borrower’s or any Restricted Subsidiary’s most recent balance sheet or in the
footnotes thereto or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s or a Restricted Subsidiary’s balance sheet or in the footnotes thereto if such
incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or any Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of
payment to the Obligations, that are (i) assumed by the transferee of any such assets (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee
(other than intercompany debt owed to the Borrower or a Restricted Subsidiary);
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(ii) any securities, notes or other obligations or assets received by the
Borrower or any Restricted Subsidiary from such transferee or in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Borrower or a Restricted Subsidiary into cash or Cash Equivalents, or by their
terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(iii) any Designated Non-Cash Consideration received by the Borrower or any Restricted
Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time
outstanding, not to exceed the greater of (i) $16,250,000 and (ii) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis), with the fair market value of each item of Designated Non-Cash Consideration being measured, at the Borrower’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to any
subsequent change(s) in value;
(iv) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as
a result of such Asset Sale (other than intercompany debt owed to the Borrower or a Restricted Subsidiary), to the extent that the Borrower and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of
such Indebtedness in connection with such Asset Sale; or
(v) any investment, assets, property or capital or other
expenditure of the kind referred to in Section 2.05(2)(b)(ii);
(2) dispositions of property or assets for an
aggregate fair market value since the Closing Date not to exceed the greater of (i) $16,250,000 and (ii) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) determined at the time of the making of such
disposition; and
(3) dispositions of property or assets for an aggregate fair market value not to exceed the greater of (i) $16,250,000
and (ii) 0.36% of Total Assets for the most recently ended Test Period (calculated on a pro forma basis) per fiscal year (with unused amounts carried forward to succeeding fiscal years).
To the extent any disposition of Collateral does not constitute an Asset Sale or is otherwise expressly permitted by this
Section 7.04 and such disposition is made to any Person other than a Loan Party, such Collateral shall automatically be sold free and clear of the Liens created by the Loan Documents, and, if requested by the Administrative
Agent, upon the certification by the Borrower that such disposition is permitted by this Agreement, the Administrative Agent and the Collateral Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the
foregoing. Notwithstanding anything to the contrary, no Asset Sale in respect of Material Intellectual Property may be made to any Unrestricted Subsidiary in contravention of sub-clause (iii) of
the second proviso to clause (a) of the definition of “Unrestricted Subsidiary Designation Conditions”.
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SECTION 7.05 Restricted Payments.
(1) The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, directly or indirectly:
(w) declare or pay any dividend or make any payment or distribution on account of the Borrower’s or any Restricted
Subsidiary’s Equity Interests (in each case, solely in such Person’s capacity as holder of such Equity Interests), including any dividend or distribution payable in connection with any merger, amalgamation or consolidation, other than:
(i) dividends, payments or distributions payable solely in Equity Interests (other than Disqualified Stock) of the
Borrower or a Parent Company or in options, warrants or other rights to purchase such Equity Interests; or
(ii) dividends,
payments or distributions by a Restricted Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a wholly owned
Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend, payment or distribution in accordance with its Equity Interests in such class or series of securities or such other amount to which it is
entitled pursuant to the terms of such Equity Interest;
(x) purchase, redeem, defease or otherwise acquire or retire for
value any Equity Interests of the Borrower or any Parent Company, including in connection with any merger, amalgamation or consolidation, in each case held by Persons other than the Borrower or a Restricted Subsidiary;
(y) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case, more
than one (1) year prior to any scheduled repayment, sinking fund payment or final maturity, any Junior Indebtedness with an aggregate outstanding principal amount in excess of the greater of (a) 16,250,000 and (b) 0.36% of Total Assets for the
most recently ended Test Period (calculated on a pro forma basis), other than:
(i) Indebtedness permitted under
clauses (g), (h), (i) and (jj) of Section 7.02(2); or
(ii) the
payment, redemption, repurchase, defeasance, acquisition or retirement for value of Junior Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within 60 days of the date of
such payment, redemption, repurchase, defeasance, acquisition or retirement; or
(z) make any Restricted Investment;
(all such payments and other actions set forth in clauses (w) through (z) above being collectively referred to as “Restricted
Payments”), unless, at the time of and immediately after giving effect to such Restricted Payment:
(a) (i) in
the case of a Restricted Payment of the Borrower described in clauses (1)(w), (x) and (y) above utilizing clause (1)(b)(ii) below, no Event of Default will have occurred and be continuing or would occur as a
consequence thereof and (ii) in the case of a Restricted Payment described in clauses (1)(z) above utilizing clause (1)(b)(ii) below, no Event of Default under Section 8.01(1) or
Section 8.01(6) with respect to the Borrower will have occurred and be continuing or would occur as a consequence thereof;
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(b) such Restricted Payment, together with the aggregate amount of all other
Restricted Payments (including the fair market value of any non-cash amount) made by the Borrower and its Restricted Subsidiaries after the Closing Date (excluding Restricted Payments permitted by
Section 7.05(2) other than clause (a) thereof), is less than the sum of (without duplication) (such amount, the “Available Amount”):
(i) [reserved];
(ii) 100.0% of the cumulative Consolidated Net Income of the Borrower and its Restricted Subsidiaries for the period (taken as
one accounting period) (which, if such cumulative Consolidated Net Income is a deficit, shall be 100% of such deficit for such period), commencing on April 1, 2026, to the end of the most recently ended Fiscal Quarter for which internal
financial statements of the Borrower are available (as determined in good faith by the Borrower) preceding such Restricted Payment, minus the amount of Restricted Payments made in reliance on Section 7.05(2)(a)
(which shall not, in any event, be less than $0 for any fiscal quarter), plus 100.0% of the aggregate net cash proceeds and the fair market value of marketable securities or other property received by the Borrower and its Restricted
Subsidiaries since the Closing Date (other than net cash proceeds to the extent such net cash proceeds have been used to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to
Section 7.02(2)(l)(i)(A)) from the issue or sale of;
(A) Equity Interests of the Borrower,
including Treasury Capital Stock (as defined below), but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of:
(I) Equity Interests to any future, present or former employees, directors, officers, members of management, consultants or
independent contractors (or their respective Controlled Investment Affiliates, Immediate Family Members or any permitted transferees thereof) of the Borrower, its Subsidiaries or any Parent Company after the Closing Date to the extent such amounts
have been applied to Restricted Payments made in accordance with Section 7.05(2)(d); and
(II)
Designated Preferred Stock; and
(B) Equity Interests of Parent Companies, to the extent the proceeds of any such issuance
or consideration for any such sale are contributed to the Borrower (excluding contributions of the proceeds from the sale of Designated Preferred Stock of such companies or contributions to the extent such amounts have been applied to Restricted
Payments made in accordance with Section 7.05(2)(d));
provided that this clause
(ii) will not include the proceeds from (1) [reserved], (2) any exercise of the cure right set forth in Section 8.04, (3) Refunding Capital Stock (as defined below) applied in accordance with
Section 7.05(2)(b) below, (4) Equity Interests or convertible debt securities of the Borrower sold to a Restricted Subsidiary, (5) Disqualified Stock or debt securities that have been converted into Disqualified
Stock or (6) Excluded Contributions; plus
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(iii) 100.0% of the aggregate amount of cash, Cash Equivalents and the fair
market value of marketable securities or other property contributed to the capital of the Borrower following the Closing Date (including the original principal amount of any Indebtedness (and accrued interest) contributed to the Borrower or its
Subsidiaries for cancellation) or that becomes part of the capital of the Borrower through consolidation, amalgamation or merger following the Closing Date, in each case, not involving cash consideration payable by the Borrower on account of such
consolidation, amalgamation or merger (other than (A) net cash proceeds of any exercise of the cure right set forth in Section 8.04, (B) net cash proceeds to the extent such net cash proceeds have been used to incur
Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to Section 7.02(2)(l)(i)(A), (C) cash, Cash Equivalents and marketable securities or other property that are contributed by a Restricted Subsidiary or
(D) Excluded Contributions); plus
(iv) 100.0% of the aggregate amount received in cash, Cash Equivalents and
the fair market value of marketable securities or other property received by the Borrower or a Restricted Subsidiary by means of:
(A) the sale or other disposition (other than to the Borrower or a Restricted Subsidiary) of, or other returns on investments
from, Restricted Investments made by the Borrower or its Restricted Subsidiaries (including cash distributions and cash interest received in respect of Restricted Investments) and repurchases and redemptions of such Restricted Investments from the
Borrower or its Restricted Subsidiaries (other than by the Borrower or a Restricted Subsidiary) and repayments of loans or advances, and releases of guarantees, which constitute Restricted Investments made by the Borrower or its Restricted
Subsidiaries, in each case after the Closing Date (excluding any Excluded Contributions made pursuant to clause (2) of the definition thereof), in each case, not in excess of the amount originally invested;
(B) the sale (other than to the Borrower or a Restricted Subsidiary) of Equity Interests of an Unrestricted Subsidiary or a
distribution from an Unrestricted Subsidiary (other than, in each case, to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment, but including such cash or fair market value to the extent exceeding the amount
of such Permitted Investment) or a dividend from an Unrestricted Subsidiary after the Closing Date (excluding any Excluded Contributions made pursuant to clause (2) of the definition thereof), in each case, not in excess of the amount
originally invested; or
(C) any returns, profits, distributions and similar amounts received on account of any Permitted
Investment subject to a Fixed Basket or a Non-Fixed Basket (to the extent in excess of the original amount of the Investment); plus
(v) 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 Borrower or a Restricted Subsidiary or the transfer of all or substantially all of the assets of an Unrestricted Subsidiary to the Borrower or a Restricted Subsidiary
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after the Closing Date, the fair market value of the Investment in such Unrestricted Subsidiary (or the assets transferred) at the time of the redesignation of such Unrestricted Subsidiary as a
Restricted Subsidiary or at the time of such merger, amalgamation, consolidation or transfer of assets, other than to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment, but, to the extent exceeding the
amount of such Permitted Investment, including such excess amounts of cash or fair market value; plus
(vi) 100.0%
of the aggregate amount any Declined Proceeds; plus
(vii) the greater of (A) $15,750,000 and (B) 0.35% of Total
Assets for the most recently ended Test Period (calculated on a pro forma basis); plus
(viii) 100.0% of the
aggregate original principal amount or liquidation preference, as applicable, of Indebtedness or Disqualified Stock of the Borrower or any Restricted Subsidiary (in each case, including related accrued interest), that has been converted into or
exchanged for Equity Interests of the Borrower or any Parent Company; provided that this clause (viii) will not include any conversions or exchanges for (A) Equity Interests issued as part of the cure right set forth in
Section 8.04, (B) Refunding Capital Stock (as defined below) applied in accordance with Section 7.05(2)(b) below, (C) Equity Interests or convertible debt securities of the Borrower sold to a
Restricted Subsidiary, (D) Disqualified Stock or debt securities that have been converted into Disqualified Stock or (5) Excluded Contributions; plus
(ix) 100.0% of the aggregate amount of proceeds received by the Borrower or any Restricted Subsidiary pursuant to any sale
leaseback transaction not otherwise prohibited hereunder, to the extent such proceeds are not required to be used to make a mandatory prepayment pursuant to Section 2.05(2)(b); plus
(x) the amount of any Declined Proceeds.
(2) The provisions of Section 7.05(1) will not prohibit:
(a) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty
(60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have
complied with the provisions of this Section 7.05;
(b) (i) the redemption, repurchase,
defeasance, discharge, retirement or other acquisition of (A) any Equity Interests (other than Disqualified Stock or Preferred Stock) of the Borrower, any Restricted Subsidiary or any Parent Company, including any accrued and unpaid dividends
thereon (“Treasury Capital Stock”) or (B) Junior Indebtedness, in each case, made (I) in exchange for, or out of the proceeds of, a sale or issuance (other than to a Restricted Subsidiary) of Equity Interests of the
Borrower or any Parent Company (in the case of proceeds, to the extent any such proceeds therefrom are contributed to the Borrower) (in each case, other than Disqualified Stock) (“Refunding Capital Stock”) and (II) within 120
days of such sale or issuance,
(ii) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds
of a sale or issuance (other than to a Restricted Subsidiary or to an employee stock ownership plan or any trust established by the Borrower or any Restricted Subsidiary) of Refunding Capital Stock made within 120 days of such sale or issuance, and
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(iii) if, immediately prior to the retirement of Treasury Capital Stock, the
declaration and payment of dividends thereon by the Borrower was permitted under clause (f)(i) or (ii) of this Section 7.05(2), the declaration and payment of dividends on the Refunding Capital Stock
(other than Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Company) in an aggregate amount per annum 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;
(c) the principal payment on, defeasance, redemption, repurchase, exchange or other acquisition or retirement of:
(i) Junior Indebtedness of the Borrower or a Guarantor made by exchange for, or out of the proceeds of the sale, issuance or
incurrence of, new Junior Indebtedness of the Borrower or a Guarantor or Disqualified Stock or other Equity Interests of the Borrower or a Guarantor, in each case made within 120 days of such sale, issuance or incurrence,
(ii) Disqualified Stock of the Borrower or a Guarantor made by exchange for, or out of the proceeds of the sale, issuance or
incurrence of, Disqualified Stock or other Equity Interests or Junior Indebtedness of the Borrower or a Guarantor in each case made within 120 days of such sale, issuance or incurrence,
(iii) Disqualified Stock of a Restricted Subsidiary that is not a Guarantor made by exchange for, or out of the proceeds of the
sale or issuance of, Disqualified Stock or other Equity Interests of a Restricted Subsidiary that is not a Guarantor in each case (I) made within 120 days of such sale or issuance and (II) is Refinancing Indebtedness incurred or issued, as
applicable, in compliance with Section 7.02,
(iv) Junior Indebtedness of the Borrower or a
Guarantor made by exchange for, or out of the proceeds of the sale, issuance or incurrence of, any other Indebtedness or Disqualified Stock or Preferred Stock in each case (A) made within 120 days of such sale, issuance or incurrence and
(B) permitted pursuant to Section 7.02, and (v) so long as no Event of Default under Section 8.01(1) or (with respect to the Borrower) Section 8.01(6) has occurred and is continuing
or would result therefrom, any Junior Indebtedness or Disqualified Stock that constitutes Acquired Indebtedness in an aggregate amount not to exceed the greater of (A) $11,250,000 and (B) 0.25% of Total Assets for the most recently ended Test Period
(calculated on a pro forma basis);
(d) a Restricted Payment to pay for the repurchase, retirement or other
acquisition or retirement for value of Equity Interests (other than Disqualified Stock) (including related stock appreciation rights or similar securities) of the Borrower or any Parent Company held by any future, present or former employee,
director, officer, member of management, consultant or independent contractor (or their respective Controlled Investment Affiliates or Immediate Family Members or any permitted transferees thereof) of the Borrower, any of its Subsidiaries or any
Parent Company (including the Manager or any Affiliated thereof) pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any
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equity subscription or equity holder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower or any Parent Company in connection
with any such repurchase, retirement or other acquisition), including any Equity Interests rolled over by management of the Borrower, any of its Subsidiaries or any Parent Company in connection with the Transactions or any acquisition, Investment or
other similar transaction; provided that the aggregate amount of Restricted Payments made under this clause (d) does not exceed the greater of (i) $8,000,000 and (ii) 0.18% of Total Assets for the most recently ended Test Period
(calculated on a pro forma basis) in any calendar year with amounts from subsequent years carried back and unused amounts in any calendar year being carried over to succeeding calendar years; provided further that each of the amounts
in any calendar year under this clause (d) may be increased by an amount not to exceed:
(i) the cash proceeds
from the sale of Equity Interests (other than Disqualified Stock or any Excluded Contribution) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any Parent Company, in each case to
any future, present or former employees, directors, officers, members of management, consultants or independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members or any permitted transferees thereof) of
the Borrower, any of its Subsidiaries or any Parent Company (including the Manager or any Affiliated thereof) that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied
to the payment of Restricted Payments by virtue of clause (b) of Section 7.05(1) or to incur Indebtedness or issue Disqualified Stock or Preferred Stock pursuant to
Section 7.02(l)(i)(A); plus
(ii) the amount of any cash bonuses otherwise payable to
members of management, employees, directors, consultants or independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members or any permitted transferees thereof) of the Borrower, any of its Subsidiaries or
any Parent Company that are foregone in exchange for the receipt of Equity Interests of the Borrower or any Parent Company pursuant to any compensation arrangement, including any deferred compensation plan; plus
(iii) the cash proceeds of life insurance policies received by the Borrower or its Restricted Subsidiaries (or by any Parent
Company to the extent contributed to the Borrower) after the Closing Date; minus
(iv) the amount of any Restricted
Payments previously made with the cash proceeds described in clauses (i), (ii) and (iii) of this proviso.
provided that the Borrower may elect to apply all or any portion of the aggregate increase contemplated by clauses
(i), (ii) and (iii) above in any calendar year; provided further that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employees, directors, officers,
members of management, consultants or independent contractors (or their respective Controlled Investment Affiliates or Immediate Family Members or any permitted transferees thereof) of the Borrower, any Parent Company or any Restricted Subsidiary in
connection with a repurchase of Equity Interests of the Borrower or any Parent Company will not be deemed to constitute a Restricted Payment for purposes of this Section 7.05 or any other provision of this Agreement;
(e) [reserved];
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(f) [reserved];
(g) (i) payments made or expected to be made by the Borrower or any Restricted Subsidiary in respect of withholding or similar
taxes payable by any future, present or former employee, director, officer, member of management, consultant or independent contractor (or their respective Controlled Investment Affiliates or Immediate Family Members or permitted transferees) of the
Borrower, any Restricted Subsidiary or any Parent Company,
(ii) any repurchases or withholdings of Equity Interests in
connection with the exercise of stock options, warrants or similar rights if such Equity Interests represent a portion of the exercise price of, or withholding obligations with respect to, such options, warrants or similar rights or required
withholding or similar taxes, and
(iii) loans or advances to officers, directors, employees, managers, consultants and
independent contractors of the Borrower, any Restricted Subsidiary or any Parent Company in connection with such Person’s purchase of Equity Interests of the Borrower or any Parent Company; provided that no cash is actually advanced
pursuant to this clause (iii) other than to pay Taxes due in connection with such purchase, unless immediately repaid;
(h) [reserved];
(i) Restricted Payments in an amount that does not exceed the aggregate amount of Excluded Contributions that are not otherwise
applied to the Available Amount or as a Cure Amount;
(j) Restricted Payments in an aggregate amount taken together with
all other Restricted Payments made pursuant to this clause (j) not to exceed (as of the date any such Restricted Payment is made) (i) the greater of (A) $112,500,000 and (B) 2.5% of Total Assets for the most recently ended Test
Period (calculated on a pro forma basis), minus (ii) any General Restricted Payments Basket Reallocated Amount (this clause (j), the “General Restricted Payments Basket”);
(k) distributions or payments of Securitization Fees;
(l) any Restricted Payment made in connection with the Transactions and the fees and expenses related thereto or owed to any
Affiliate(s);
(m) [reserved];
(n) the declaration and payment of dividends or distributions by the Borrower or any Restricted Subsidiary to, or the making of
loans or advances to, the Borrower or any Parent Company in amounts required for any Parent Company to pay in each case without duplication:
(i) franchise, excise and similar Taxes and other fees and expenses, required to maintain their corporate or other legal
existence;
(ii) for any taxable period (or portion thereof) in which the Borrower or any of its Subsidiaries are members
(or disregarded subsidiaries of members) of a consolidated, combined, unitary or similar group for any federal, state or local income tax purposes (a “Tax Group”), to pay any such federal, state or local income taxes or any
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franchise taxes imposed in lieu thereof, of the parent of such Tax Group, to the extent attributable to the income of the Borrower and its applicable Subsidiaries that are members (or disregarded
subsidiaries of members) of such Tax Group, determined as if the Borrower and its applicable Subsidiaries filed consolidated, combined, unitary or similar returns separately from any other members of the group and (2) for any taxable period (or
portion thereof) in which the Borrower is treated as a partnership or disregarded entity for U.S. and/or applicable state or local income tax purposes (other than a disregarded entity described in clause (1)), an amount equal to the sum of
(A) the product of (i) the net taxable income of the Borrower (determined, if the Borrower is a disregarded entity, by assuming that the Borrower is a partnership for U.S. federal income tax purposes) for such taxable period, which net
taxable income will be determined by (w) taking into account the potential limitation under Section 163(j) of the Code and the alternative minimum tax rules, (x) assuming any state or local income taxes are not deductible for U.S.
federal income tax purposes, (y) assuming, for purposes of Sections 951, 951A, and 956(a) of the Code, and for purposes of any provision that specifically applies by reference to any of such sections or the Treasury Regulations promulgated
under Sections 951, 951A, or 956 of the Code (but only as the regulations under Section 956 of the Code relate to Section 956(a) of the Code), that the Borrower is a “United States shareholder” (within the meaning of
Section 957 of the Code) and is treated as owning the equity interests of any Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Code (notwithstanding the first sentence of Treasury
Regulations Section 1.958-1(d)(1)) and (z) without regard to the application of Section 199A of the Code, any basis adjustments described in Section 743 of the Code and the Treasury
Regulations thereunder (or any comparable provisions of state or local income tax law), or any other partner-level attribute multiplied by (ii) the maximum combined marginal tax rate applicable to an individual (or, if higher, a corporation)
resident (or doing business) in New York or California (whichever is higher) (the “Assumed Tax Rate”) and (B) without duplication of any amounts described in clause (A) hereof, any additional amounts payable (x) by
any Parent Company of the Borrower that is a partnership for U.S. federal income tax purposes with respect to any “imputed underpayment” (within the meaning of Section 6225(a) of the Code and any state or local equivalent) with
respect to such taxable period ending after the Closing Date (whenever it may arise after the end of such taxable period) or (y) by the direct or indirect equity holders of the Borrower (or any Parent Company of the Borrower) attributable to
any “push out” election under Section 6226 of the Code (or any state or local equivalent) for such taxable period (determined by applying the Assumed Tax Rate), but, in the cause of clause (x) or clause (y) hereof, solely
to the extent that any such interest, penalties, or additional amounts are attributable to the operations of the Borrower and/or its Subsidiaries (or tax items derived therefrom);
(iii) salary, bonus, severance and other benefits payable to, and indemnities provided on behalf of, employees, directors,
officers, members of management, consultants and independent contractors of any Parent Company, and any payroll, social security or similar Taxes thereof;
(iv) general corporate or other operating, administrative, compliance and overhead costs and expenses (including expenses
relating to auditing and other accounting matters) of any Parent Company;
(v) fees and expenses (including ongoing
compliance costs and listing expenses) related to any equity or debt offering of a Parent Company (whether or not consummated);
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(vi) amounts that would be permitted to be paid directly by the Borrower or
its Restricted Subsidiaries under Section 6.15(2) (other than clause (b)(i) thereof);
(vii) interest, principal and other payments on Indebtedness the proceeds of which have been contributed to the Borrower or any
Restricted Subsidiary or that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower or any Restricted Subsidiary incurred in accordance with Section 7.02; and
(viii) to finance Investments or other acquisitions or investments otherwise permitted to be made pursuant to this
Section 7.05 if made by the Borrower; provided that:
(A) such Restricted Payment must be
made within 120 days of the closing of such Investment, acquisition or investment,
(B) such Parent Company must, promptly
following the closing thereof, cause (I) all property acquired (whether assets or Equity Interests) to be contributed to the capital of the Borrower or a Restricted Subsidiary or (II) the merger, amalgamation, consolidation or sale of the
Person formed or acquired into the Borrower or a Restricted Subsidiary (to the extent not prohibited by Section 7.03) in order to consummate such Investment, acquisition or investment,
(C) such Parent Company and its Affiliates (other than the Borrower or any Restricted Subsidiary) receive no consideration or
other payment in connection with such transaction except to the extent the Borrower or a Restricted Subsidiary could have given such consideration or made such payment in compliance with this Agreement,
(D) any property received by the Borrower may not increase amounts available for Restricted Payments pursuant to clause
(b) of Section 7.05(1), and
(E) to the extent constituting an Investment, such
Investment will be deemed to be made by the Borrower or such Restricted Subsidiary pursuant to another provision of this Section 7.05 (other than pursuant to clause (i) of this
Section 7.05(2)) or pursuant to the definition of “Permitted Investments” (other than clause (9) thereof);
(o) [reserved];
(p) cash payments, or loans, advances, dividends or distributions to any Parent Company to make payments, in lieu of issuing
fractional shares in connection with share dividends, share splits, reverse share splits, mergers, consolidations, amalgamations or other business combinations and in connection with the exercise of warrants, options or other securities convertible
into or exchangeable for Equity Interests of the Borrower, any Restricted Subsidiary or any Parent Company;
(q)
[reserved];
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(r) payments made for the benefit of the Borrower or any Restricted
Subsidiary to the extent such payments could have been made by the Borrower or any Restricted Subsidiary because such payments (i) would not otherwise be Restricted Payments and (ii) would be permitted by
Section 6.15 (other than Section 6.15(2)(b)(i) or (ii));
(s)
payments and distributions to dissenting stockholders of Restricted Subsidiaries pursuant to applicable law, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of all or substantially all of the assets of any
Restricted Subsidiary that complies with the terms of this Agreement or any other transaction that complies with the terms of this Agreement;
(t) the payment of dividends, other distributions and other amounts by the Borrower to, or the making of loans to, any Parent
Company in the amount required for such parent to, if applicable, pay amounts equal to amounts required for any Parent Company, if applicable, to pay interest, principal or other payments (including AHYDO Payments) on Indebtedness, the proceeds of
which have been permanently contributed to the Borrower or any Restricted Subsidiary and that has been guaranteed by, or is otherwise considered Indebtedness of, the Borrower or any Restricted Subsidiary incurred in accordance with this Agreement;
provided that the aggregate amount of such dividends, distributions, loans and other amounts shall not exceed the amount of cash actually contributed to the Borrower for the incurrence of such Indebtedness;
(u) the making of cash payments in connection with any conversion of Convertible Indebtedness of the Borrower or any Restricted
Subsidiary in an aggregate amount since the date of this Agreement not to exceed the sum of (i) the principal amount of such Convertible Indebtedness plus (ii) any payments received by the Borrower or any Restricted Subsidiary
pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction;
(v) any payments in
connection with (i) a Permitted Bond Hedge Transaction and (ii) the settlement of any related Permitted Warrant Transaction (A) by delivery of shares of the Borrower’s common equity upon settlement thereof or (B) by (I) set-off against the related Permitted Bond Hedge Transaction or (II) payment of an early termination amount thereof in common equity upon any early termination thereof;
(w) the refinancing of any Junior Indebtedness with the Net Proceeds of, or in exchange for, any Refinancing Indebtedness of
such Junior Indebtedness (to the extent the permitted hereunder) or Equity Interests of the Borrower or any Parent Company (the proceeds of which are not otherwise applied to the Available Amount, Excluded Contributions or as a Cure Amount); and
(x) the payment of any dividend or other distribution or the consummation of any irrevocable redemption on account of its
Capital Stock declared by the Borrower in any Fiscal Quarter; provided that such dividends or similar distributions may be paid by the Borrower within sixty (60) calendar days following the date that such dividend or other distribution
is declared by the Borrower; provided, further, that, solely for purposes of this clause (y), the amount of such dividends or distributions declared in any Fiscal Quarter as to which Restricted Payments are made pursuant to this
clause (y) shall not exceed the greater of (i) the amount necessary to enable the Borrower to maintain its REIT Status and avoid income or excise tax under Sections 857 or 4981 of the Code (provided that the Borrower may make
such distributions in the form of cash or Cash Equivalents notwithstanding whether dividends in a form other than cash or Cash Equivalents would be sufficient to maintain its REIT Status and avoid income or excise tax under Sections 857 or 4981 of
the Code) and (ii) 100.0% of estimated Core Earnings of the Borrower and its Subsidiaries, determined in good faith by the Borrower on a run-rate basis as of the date of declaration of the relevant Restricted
Payment, for the full fiscal quarter in which the applicable Restricted Payment is declared.
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For purposes of clauses (g) and (n) above, Taxes will include all
interest and penalties with respect thereto and all additions thereto.
The amount of all Restricted Payments (other than cash) will be
the fair market value on the date the Restricted Payment is made, or at the Borrower’s election, the date a commitment is made to make such Restricted Payment, of the assets or securities proposed to be transferred or issued by the Borrower or
any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
For the avoidance of doubt, this
Section 7.05 will not restrict the making of any AHYDO Payment with respect to, and required by the terms of, any Indebtedness of the Borrower or any Restricted Subsidiary permitted to be incurred under this Agreement.
Notwithstanding anything to the contrary, (1) no Investment or other transfers in respect of Material Intellectual Property may be made
to any Unrestricted Subsidiary in contravention of sub-clause (iii) of the second proviso to clause (a) of the definition of “Unrestricted Subsidiary Designation Conditions”, (2) the only Baskets available for
Investments made in Unrestricted Subsidiaries by the Borrower or any Restricted Subsidiary and designations of Unrestricted Subsidiaries shall be clause (23) of the definition of “Permitted Investments”, clauses (ii),
(iii) and (vii) of Section 7.05(1)(b) and Section 7.05(2)(i), and any designation of any Unrestricted Subsidiary pursuant to Section 7.05 shall be deemed an Investment
pursuant to such Baskets and (3) there shall be no reclassification of such Investments permitted in reliance on such Baskets.
SECTION 7.06 Burdensome Agreements.
(1) The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary that is not a Guarantor (or, solely in the case of
clause (d), that is a Subsidiary Guarantor) to, directly or indirectly, create or otherwise cause to exist or become effective any consensual encumbrance or consensual restriction (other than this Agreement or any other Loan Document) on the
ability of any Restricted Subsidiary that is not a Guarantor (or, solely in the case of clause (d)(i), that is a Subsidiary Guarantor, or, solely in the case of clause (d)(ii), the Borrower), to:
(a) (i) pay dividends or make any other distributions to the Borrower or any Restricted Subsidiary that is a Guarantor on its
Capital Stock or with respect to any other interest or participation in, or measured by, its profits, or (ii) pay any Indebtedness owed to the Borrower or to any Restricted Subsidiary that is a Guarantor;
(b) make loans or advances to the Borrower or to any Restricted Subsidiary that is a Guarantor;
(c) sell, lease or transfer any of its properties or assets to the Borrower or to any Restricted Subsidiary that is a
Guarantor; or
(d) with respect to (i) any Subsidiary Guarantor (and, solely to the extent this clause (d)(i)
relates to Hedging Obligations of Restricted Subsidiaries, the Borrower), Guaranty the Obligations or (ii) the Borrower or any Subsidiary Guarantor, create, incur or cause to exist or become effective Liens on property of such Person for the
benefit of the Lenders with respect to the Obligations under the Loan Documents to the extent such Lien is required to be given to the Secured Parties pursuant to the Loan Documents;
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provided that any dividend or liquidation priority between or among classes or series of Capital
Stock, and the subordination of any obligation (including the application of any remedy bars thereto) to any other obligation will not be deemed to constitute such an encumbrance or restriction.
(2) Section 7.06(1) will not apply to any encumbrances or restrictions existing under or by reason of:
(a) encumbrances or restrictions in effect on the Closing Date, including pursuant to the Loan Documents, any Cash Management
Services, Cash Management Obligations, Hedge Agreements, Hedging Obligations and in each case any related documentation;
(b) encumbrances or restrictions pursuant to any Additional Letter of Credit Facility or any Specified Letter of Credit and in
each case any related documentation;
(c) Purchase Money Obligations and Finance Lease Obligations that impose restrictions
of the nature discussed in clauses (c) and (d)(ii) above on the property so acquired;
(d) applicable
Law or any applicable rule, regulation or order;
(e) any agreement or other instrument of a Person, or relating to
Indebtedness or Equity Interests of a Person, acquired by or merged, amalgamated or consolidated with and into the Borrower or any Restricted Subsidiary or an Unrestricted Subsidiary that is designated as a Restricted Subsidiary, or any other
transaction entered into in connection with any such acquisition, merger, consolidation or amalgamation in existence at the time of such acquisition or at the time it merges, amalgamates or consolidates with or into the Borrower or any Restricted
Subsidiary or an Unrestricted Subsidiary that is designated as a Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person (but, in any such case, not created in contemplation thereof), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired or designated and its Subsidiaries, or the property or assets of the Person so acquired or designated and its Subsidiaries or
the property or assets so acquired or designated;
(f) contracts or agreements for the sale or disposition of assets,
including any restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that has been entered into for the sale or disposition of any of the Capital Stock or assets of such Subsidiary;
(g) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary
course of business or consistent with industry practice or arising in connection with any Liens permitted by Section 7.01 or any applicable Intercreditor Agreement;
(h) provisions in agreements governing Indebtedness, Disqualified Stock or Preferred Stock of Restricted Subsidiaries that are
not Guarantors permitted to be incurred subsequent to the Closing Date pursuant to Section 7.02;
(i) provisions in joint venture agreements and other similar agreements (including equity holder agreements) relating to such
joint venture or its members or entered into in the ordinary course of business or consistent with industry practice;
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(j) customary provisions contained in leases,
sub-leases, licenses, sub-licenses, Equity Interests or similar agreements, including with respect to IP Rights and other agreements;
(k) restrictions created in connection with any Qualified Securitization Facility that, in the good faith determination of the
Borrower, are necessary or advisable to effect such Qualified Securitization Facility;
(l) restrictions or conditions
contained in any trading, netting, operating, construction, service, supply, purchase, sale or other agreement to which the Borrower or any Restricted Subsidiary is a party entered into in the ordinary course of business or consistent with industry
practice; provided that such agreement prohibits the encumbrance of solely the property or assets of the Borrower 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 Borrower or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary;
(m) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or
any Restricted Subsidiary;
(n) customary provisions restricting assignment of any agreement;
(o) restrictions arising in connection with cash or other deposits permitted under Section 7.01;
(p) any other agreement or instrument governing any Indebtedness, Disqualified Stock or Preferred Stock permitted to be
incurred or issued pursuant to Section 7.02 entered into after the Closing Date that contains encumbrances and restrictions that either (i) are no more restrictive in any material respect, taken as a whole, with
respect to the Borrower or any Restricted Subsidiary than (A) the restrictions contained in the Loan Documents as of the Closing Date or (B) those encumbrances and other restrictions that are in effect on the Closing Date with respect to
the Borrower or that Restricted Subsidiary pursuant to agreements in effect on the Closing Date, (ii) are not materially more disadvantageous, taken as a whole, to the Lenders than is customary in comparable financings for similarly situated
issuers or (iii) will not materially impair the Borrower’s ability to make payments on the Obligations when due, in each case in the good faith judgment of the Borrower;
(q) (i) under terms of Indebtedness and Liens in respect of Indebtedness permitted to be incurred pursuant to
Section 7.02(2)(d) and any permitted refinancing in respect of the foregoing and (ii) agreements entered into in connection with any Sale-Leaseback Transaction entered into in the ordinary course of business or
consistent with industry practice;
(r) customary restrictions and conditions contained in documents relating to any Lien
so long as (i) such Lien is a Permitted Lien and such restrictions or conditions relate only to the specific asset subject to such Lien and (ii) such restrictions and conditions are not created for the purpose of avoiding the restrictions
imposed by this Section 7.06;
(s) any encumbrance or restriction with respect to a Restricted
Subsidiary that was previously an Unrestricted Subsidiary which encumbrance or restriction exists pursuant to or by reason of an agreement that such Subsidiary is a party to or entered into before the date on which such Subsidiary became a
Restricted Subsidiary; provided that such agreement was not entered into in anticipation of an Unrestricted Subsidiary becoming a Restricted Subsidiary and any such encumbrance or restriction does not extend to any assets or property of the Borrower
or any other Restricted Subsidiary other than the assets and property of such Restricted Subsidiary;
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(t) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (a) through (s) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the Borrower, no more restrictive in any material respect with respect to such encumbrance and other
restrictions, taken as a whole, than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing;
(u) any encumbrance or restriction existing under, by reason of or with respect to Refinancing Indebtedness; provided that the
encumbrances and restrictions contained in the agreements governing that Refinancing Indebtedness are, in the good faith judgment of the Borrower, not materially more restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness being refinanced;
(v) applicable law or any applicable rule, regulation or order in any jurisdiction
where Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries permitted to be incurred or issued pursuant to Section 7.02 is incurred;
(w) any encumbrances or restrictions arising under customary provisions restricting assignments, subletting, licensing,
sublicensing or other transfers (including the granting of any Lien) contained in CRE Finance Assets, Real Estate Investments, leases, subleases, licenses, sublicenses, concessions, occupancy agreements, joint venture agreements, co-lender agreements, intercreditor agreements, participation agreements, purchase and sale agreements, servicing agreements, custodial agreements and other agreements entered into in the ordinary course of business
(determined by the Borrower in good faith); and
(x) any encumbrances or restrictions set forth in agreements entered into
in connection with the administration, operation or management of CRE Finance Assets, Asset Financing Facilities, Real Estate Investments and/or CRE Financings in the ordinary course of business (as determined in good faith by the Borrower).
SECTION 7.07 Conduct of Business. From and after the Closing Date, the Borrower shall not, nor shall it permit any of its
Restricted Subsidiaries to, engage in any material line of business other than a business which is not prohibited from being conducted by such Person while maintaining REIT Status with respect to the Borrower (including, without limitation, to the
extent not prohibited from being conducted by such Person while maintaining REIT Status with respect to the Borrower, (1) similar, incidental, complementary, ancillary or related businesses to the businesses engaged in by the Borrower or any
Restricted Subsidiary on the Closing Date and (2) any business permitted to be engaged in by a “taxable REIT subsidiary” (as defined in Section 856 of the Code) pursuant to Section 856, et seq. of the Code).
SECTION 7.08 Financial Covenants.
(1) The Borrower shall not permit, as of the Closing Date and the last day of each Fiscal Quarter thereafter for which financial statements
have been, or are required to have been, delivered pursuant to Section 6.01(1) or (2), the Total Debt to Total Assets Ratio to be greater than 83.333% (the “LTV Covenant”).
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(2) The Borrower shall not permit (a) as of the Closing Date and the last day of each
Fiscal Quarter thereafter for which financial statements have been, or are required to have been, delivered pursuant to Section 6.01(1) or (2), the Interest Coverage Ratio to be less than 1.30:1.00 (the
“Interest Coverage Covenant”) and (b) at any time, the Liquidity of the Borrower and its Subsidiaries to be less than the greater of $15,000,000 and 5.0% of the aggregate amount of Recourse Indebtedness of the Borrower and
TRT Holdco (and not, for the avoidance of doubt, any other subsidiaries of the Borrower) (the “Liquidity Covenant” and, together with the LTV Covenant and the Interest Coverage Covenant, the “Financial
Covenants”); provided, that this Section 7.08(2) shall be solely for the benefit of the Revolving Lenders and only the Required Facility Lenders in respect of the Revolving Facility may (i) amend,
waive or otherwise modify this Section 7.08(2) or the defined terms used in this Section 7.08(2) or the definition of GAAP (in each case, solely in respect of the use of such defined terms for
purposes of this Section 7.08(2)) and (ii) waive any Default or Event of Default resulting from, or related to, a breach of this Section 7.08(2) (for the avoidance of doubt, without the
consent of any other Lenders). Except as set forth in Section 8.01(2), any Default or Event of Default under the provisions of this Section 7.08(2) will not by itself constitute a Default or Event
of Default under any Facility (other than the Revolving Facility) and will not trigger a cross-default thereunder.
ARTICLE VIII
Events of Default and Remedies
SECTION 8.01 Events of Default. Each of the events referred to in clauses (1) through (11) of this
Section 8.01 shall constitute an “Event of Default”:
(1)
Non-Payment. The Borrower fails to pay (a) when and as required to be paid herein, any amount of principal of any Loan or (b) 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; provided that, in each case a failure to pay caused by administrative or technical error shall not constitute an Event of Default if
payment is made within fifteen (15) Business Days of the discovery of such error or of the Administrative Agent notifying the Borrower of such error; or
(2) Specific Covenants. The Borrower or any Subsidiary Guarantor fails to perform or observe any term, covenant or agreement contained
in Section 6.03(1) or 6.05(1) (solely with respect to the Borrower, other than in a transaction not prohibited under Section 7.03, 7.04 or 7.05) or Article VII (other
than Section 7.07); provided that the Borrower’s failure to comply with the Interest Coverage Covenant (an “Interest Coverage Covenant Event of Default”) and/or the Liquidity Covenant (a
“Liquidity Covenant Event of Default”), in each case, under the Revolving Facility shall not constitute an Event of Default with respect to any Facility other than the Revolving Facility, unless and until the Required Facility
Lenders for the Revolving Facility have actually terminated all of the Revolving Commitments under the Revolving Facility and declared all Obligations with respect thereto to be immediately due and payable pursuant to
Section 8.02 as a result of the Interest Coverage Covenant Event of Default and/or the Liquidity Covenant Event of Default (and such declaration has not been rescinded as of the applicable date) (with respect to the
Interest Coverage Covenant Event of Default, the “Interest Coverage Covenant Standstill” and, with respect to the Liquidity Covenant Event of Default, the “Liquidity Covenant Standstill” and, collectively, the
“Financial Covenant Standstill”); provided further that any Financial Covenant Event of Default is subject to cure pursuant to Section 8.04; or
(3) Other Defaults. The Borrower or any Subsidiary Guarantor fails to perform or observe any other covenant or agreement (not specified
in Section 8.01(1) or (2) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty (30) consecutive days after receipt by the Borrower of written
notice thereof from the Administrative Agent; or
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(4) Representations and Warranties. Any representation, warranty or certification
made or deemed made by any Loan Party herein or in any other Loan Document, Committed Loan Notice or certificate of a Responsible Officer of the Borrower expressly required to be delivered hereunder shall be untrue in any material respect when made
or deemed made and, for the failure of any representation, warranty or certification that is capable of being cured (as determined in good faith by the Borrower), such incorrect representation, warranty or certification shall remain incorrect for a
period of thirty (30) consecutive days after the date on which written notice thereof shall have been given to the Borrower by the Administrative Agent; or
(5) Cross-Default. The Borrower or any Restricted Subsidiary of the Borrower (a) fails to make any payment beyond the applicable
grace period, if any, whether by scheduled maturity, required prepayment, acceleration, demand or otherwise, in respect of any Indebtedness (other than Indebtedness hereunder) having an aggregate outstanding principal amount (individually or in the
aggregate with all other Indebtedness as to which such a failure shall exist) in excess of the Threshold Amount, in each case beyond the grace period, if any, provided therefor; 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 Hedging Obligations, termination events or equivalent events pursuant to the terms of such Hedging Obligations and
not as a result of any default thereunder by the Borrower or any Restricted Subsidiary of the Borrower or (ii) with respect to Convertible Indebtedness, (A) any event that permits the holders thereof to convert or exchange such Convertible
Indebtedness or (B) the conversion or exchange of such Convertible Indebtedness, in either case, into Qualified Equity Interests (or other securities or property following a merger event, reclassification or other change of such Qualified
Equity Interests), cash or a combination thereof), in each case beyond the grace period, if any, provided therefor, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer
to repurchase, prepay, defease or redeem all of such Indebtedness to be made, prior to its stated maturity; provided that (1) any such failure under clauses (a) or (b) above (a) shall only constitute an Event of
Default hereunder if such failure is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to Section 8.02 and (b) for the
avoidance of doubt, shall not result in a Default or Event of Default hereunder while any notice period or grace period, if applicable to such failure remains in effect and (2) this clause (5) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of 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 no such event (other than the failure to make a principal payment at stated final maturity) under any Asset Financing Facility or CRE Financing shall constitute a Default or Event of Default under this clause
(5) until such Asset Financing Facility or CRE Financing, as applicable, shall have been accelerated as a result of such event; or
(6) Insolvency Proceedings, Etc. The Borrower, any Restricted Subsidiary of the Borrower that is a Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all or any material part of its property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty
(60) consecutive 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) consecutive calendar days, or an order for relief is entered in any such proceeding; or
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(7) Judgments. There is entered against the Borrower, any Restricted Subsidiary of
the Borrower that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, a final non-appealable judgment and order for the payment
of money in an aggregate amount exceeding the Threshold Amount (to the extent not paid or covered by insurance or indemnities as to which the insurer or indemnifying party has been notified of such judgment or order and the applicable insurance
company or indemnifying party has not denied coverage thereof) 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
(8) ERISA. (a) An ERISA Event occurs, (b) the Borrower or any of their respective ERISA Affiliates 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 or (c) with respect to a Foreign Plan, a termination of or
withdrawal from such Foreign Plan or non-compliance of such Foreign Plan with applicable Law or plan terms occurs, except, with respect to each of the foregoing clauses of this Section 8.01(8), as would
not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or
(9) Invalidity of Loan
Documents. Any material provision of the Loan Documents, taken as a whole, at any time after its execution and delivery and for any reason (other than (a) the result of a transaction not prohibited under
Section 7.03, 7.04 or 7.05, (b) as a result of acts or omissions by an Agent or any Lender or (c) due to the satisfaction in full of the Termination Conditions) ceases to be in full force and effect, or
any Loan Party contests in writing the validity or enforceability of the Loan Documents, taken as a whole (other than as a result of the satisfaction of the Termination Conditions), or any Loan Party denies in writing that it has any or further
liability or obligation under the Loan Documents, taken as a whole (other than (i) the result of a transaction not prohibited under Section 7.03, 7.04 or 7.05 or (ii) as a result of the satisfaction
of the Termination Conditions), or purports in writing to revoke or rescind the Loan Documents, taken as a whole, prior to the satisfaction of the Termination Conditions; or
(10) Collateral Documents. Any Lien purported to be created by any material Collateral Document with respect to a material portion of
the Collateral shall cease to be, or any Lien purported to be created by any material Collateral Document with respect to a material portion of the Collateral shall be asserted in writing by any Loan Party (prior to the satisfaction of the
Termination Conditions) not to be, a valid and perfected Lien with the priority required by such Collateral Document (or other security purported to be created on the applicable Collateral) on, and security interest in, any material portion of the
Collateral purported to be covered thereby, subject to Liens permitted under Section 7.01, except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent or the
Collateral Agent to maintain control of Collateral or possession of Collateral actually delivered to it and pledged under the Collateral Documents or to file Uniform Commercial Code amendments relating to a Loan Party’s change of name or
jurisdiction of formation (solely to the extent that the Borrower provides the Collateral Agent written notice thereof in accordance with the Security Agreement, and the Collateral Agent and the Borrower have agreed that the Collateral Agent will be
responsible for filing such amendment) or continuation statements, and except as to Collateral consisting of real property to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied
coverage; or
(11) Change of Control. There occurs any Change of Control.
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SECTION 8.02 Remedies upon Event of Default. Subject to
Section 8.04, if any Event of Default occurs and is continuing, the Administrative Agent may, with the consent of the Required Lenders, and shall, at the request of the Required Lenders, take any or all of the following
actions:
(1) declare the Commitments of each Lender and any obligation of the Issuing Banks to make L/C Credit Extensions and the Swing
Line Lenders to make Swing Line Loans to be terminated, whereupon such Commitments and obligation will be terminated;
(2) declare the
unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable under any Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;
(3) require that the Borrower Cash Collateralize the then outstanding
Letters of Credit (in an amount equal to 103% of the then Outstanding Amount thereof); and
(4) 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 none of the foregoing
actions shall be permitted to be taken unless the Administrative Agent shall have delivered prior written notice to the Borrower (which written notice may be delivered concurrently) that the Administrative Agent is taking such actions pursuant to
this Section 8.02; provided further that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower, under Title 11 of the United States Code entitled
“Bankruptcy”, as now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”), the Commitments of each Lender and any obligation of the Issuing Banks to issue Letters of Credit and any obligation of any
Swing Line Lender to make Swing Line Loans, will automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid will automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the Letters of Credit as aforesaid will automatically become effective, in each case without further act of the Administrative Agent or any Lender; provided further that, for the avoidance of doubt, during the
continuance of any Event of Default arising under Section 7.08, after giving effect to the first proviso to Section 8.01(2) (1) solely upon the request of the Required Facility Lenders under the
Closing Date Revolving Facility (but not the Required Lenders or any other Lender or group of Lenders), the Administrative Agent shall, by notice to the Borrower, (a) declare the Revolving Commitments of each Lender and any obligation of the
Issuing Banks to make L/C Credit Extensions and any Swing Line Lender to make Swing Line Loans to be terminated, whereupon such Revolving Commitments and obligation will be terminated, (b) declare the unpaid principal amount of all outstanding
Revolving Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable under any Loan Document in respect of the Revolving Loans to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and (c) require that the Borrower Cash Collateralize the then outstanding Letters of Credit (in an amount equal to 103% of the then Outstanding Amount thereof) and (2) subject
to the Financial Covenant Standstill, the Administrative Agent, with the consent of the Required Lenders, may, and at the request of the Required Lenders, shall, by notice to the Borrower, declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable under any Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower.
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SECTION 8.03 Application of Funds. After the exercise of remedies provided for
in Section 8.02, subject to any Intercreditor Agreement then in effect, any amounts received on account of the Obligations will be applied by the Administrative Agent 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 the Administrative Agent and the Collateral Agent in their capacities as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than
principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III, and other than Obligations under Secured Hedge Agreements and Secured Cash Management Agreements)
payable to the Lenders, ratably among them in proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and L/C
Borrowings (including any post-petition interest accruing after the commencement of a proceeding under any Debtor Relief Law) 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 and L/C Borrowings
(including to Cash Collateralize that portion of L/C Obligations equal to 103% of the aggregate undrawn amount of Letters of Credit and related Support Agreements), the Obligations under Secured Hedge Agreements, Cash Management Obligations under
Secured Cash Management Agreements and Specified Letter of Credit Obligations with respect to Specified Letters of Credit, 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 Borrower or as otherwise required
by Law.
Subject to Section 2.03(3), amounts used to Cash Collateralize the aggregate undrawn amount of Letters
of Credit pursuant to clause Fourth of Section 8.03 will 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 will be applied to the other Obligations, if any, in the order set forth above and, if no Obligations remain outstanding, will be paid to the Borrower.
Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party.
SECTION 8.04 Right to Cure.
(1) Notwithstanding anything to the contrary contained in Section 8.01 or Section 8.02,
but subject to Sections 8.04(2) and (3), for the purpose of determining whether an Event of Default under the Financial Covenants has occurred, the Borrower may on one or more occasions designate any portion of the Net Proceeds from
any Permitted Equity Issuance or of any cash contribution to the common equity capital of the Borrower (or from any other cash contribution to capital or sale or issuance of any other Equity Interests (other than Disqualified Stock) on terms
reasonably satisfactory to the Administrative Agent) (the “Cure Amount”) as an increase to Total Assets, Consolidated Interest Income or Liquidity, as applicable, for the applicable fiscal quarter; provided that:
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(a) such amounts to be designated are actually received by the Borrower
(i) on or after the first day of the applicable fiscal quarter and (ii) on or prior to the fifteenth (15th) Business Day after the date on which the Compliance Certificate is required to be delivered with respect to such applicable fiscal
quarter, after giving effect to any applicable grace period (the “Cure Expiration Date”),
(b) such
amounts to be designated do not exceed the maximum aggregate amount necessary to cure any Event of Default under the Financial Covenants as of such date; and
(c) the Borrower will have provided notice to the Administrative Agent on the date such amounts are designated as a “Cure
Amount” (it being understood that to the extent such notice is provided in advance of delivery of a Compliance Certificate for the applicable period, the amount of such Net Proceeds that is designated as the Cure Amount may be lower than
specified in such notice to the extent that the amount necessary to cure any Event of Default under the Financial Covenants is less than the full amount of such originally designated amount).
The Cure Amount used to calculate Total Assets, Consolidated Interest Income and/or Liquidity, as applicable, for one (1) fiscal quarter
will be used and included when calculating Total Assets, Consolidated Interest Income and Liquidity, as applicable, for each Test Period that includes such fiscal quarter. A Cure Amount made (i) in respect of the LTV Covenant shall also be
included in Consolidated Interest Income and Liquidity for purposes of determining the Interest Coverage Covenant and the Liquidity Covenants for such fiscal quarter and the applicable subsequent periods (and, for the avoidance of doubt, shall
constitute a single utilization of a Cure Amount for purposes of determining the limitations set forth in clauses (2) and (3) below), (ii) in respect of the Interest Coverage Covenant shall also be included in Total Assets and
Liquidity for purposes of determining the LTV Covenant and Liquidity Covenant for such fiscal quarter and the applicable subsequent periods (and, for the avoidance of doubt, shall constitute a single utilization of a Cure Amount for purposes of
determining the limitations set forth in clauses (2) and (3) below), (iii) in respect of the Liquidity Covenant shall also be included in Total Assets and Consolidated Interest Income for purposes of determining the LTV Covenant
and Interest Coverage Covenant for such fiscal quarter and the applicable subsequent periods (and, for the avoidance of doubt, shall constitute a single utilization of a Cure Amount for purposes of determining the limitations set forth in clauses
(2) and (3) below) and (iv) to cure more than one or all Financial Covenants with respect to an applicable fiscal quarter shall constitute a single utilization of a Cure Amount for purposes of determining t the limitations set
forth in clauses (2) and (3) below. The parties hereby acknowledge that this Section 8.04(1) may not be relied on for purposes of calculating any financial ratios other than as applicable to the Financial
Covenants (and may not be included for purposes of determining pricing, mandatory prepayments and the availability or amount permitted pursuant to any covenant under Article VII) and may not result in any adjustment to any amounts (including
the amount of Indebtedness) or increase in cash with respect to the fiscal quarter with respect to which such Cure Amount was received other than the amount of Total Assets, Consolidated Interest Income and Liquidity referred to in the immediately
preceding sentence, except to the extent such proceeds are applied to prepay Indebtedness under the Facilities.
Notwithstanding anything
to the contrary contained in Section 8.01 and Section 8.02, (i) upon designation of the Cure Amount by the Borrower in an amount necessary to cure any Event of Default under the Financial
Covenants, the Financial Covenants will be deemed satisfied and complied with as of the end of the relevant fiscal quarter with the same effect as though there had been no failure to comply with the Financial Covenants and any Event of Default under
the Financial Covenants (and any other Default as a result thereof) will be deemed not to have occurred for purposes of the Loan Documents, (ii)
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from and after the date that the Borrower delivers a written notice to the Administrative Agent that it intends to exercise its cure right under this Section 8.04 (a
“Notice of Intent to Cure”) neither the Administrative Agent nor any Lender may exercise any rights or remedies under Section 8.02 (or under any other Loan Document) on the basis of any actual or
purported Event of Default under the Financial Covenants (and any other Default as a result thereof) until and unless the Cure Expiration Date has occurred without the Cure Amount having been designated and (iii) no Lender or Issuing Bank shall
be required to (but in its sole discretion may) make any Revolving Loan or issue or amend any Letter of Credit from and after such time as the Administrative Agent has received the Notice of Intent to Cure unless and until the Cure Amount is
actually received.
(2) In each period of four consecutive fiscal quarters, there shall be no more than two (2) fiscal quarters in
which the cure right set forth in Section 8.04(1) is exercised.
(3) There shall be no more than five
(5) fiscal quarters in which the cure rights set forth in Section 8.04(1) are exercised during the term of the Closing Date Term Loans; provided that there may be an additional fiscal quarter after the Original
Term Loan Facility Maturity in which the cure rights set forth in this Section 8.04 are exercised.
ARTICLE IX
The
Agents
SECTION 9.01 Appointment and Authorization.
(1) Each Lender and Issuing Bank hereby irrevocably appoints Wells Fargo Bank, N.A., to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article IX are solely for the benefit of the Administrative Agent, the Lenders and each Issuing Bank and the Borrower shall not have rights as a third-party
beneficiary of any such provision. The Administrative Agent hereby represents and warrants that it is either (a) a “U.S. person” and a “financial institution” and that it will comply with its “obligation to
withhold”, each within the meaning of Treasury Regulations Section 1.1441-1(b)(2)(ii) or (b) a Withholding U.S. Branch. It is understood and agreed that any right to take (or decline to take)
or any power or authority granted, assigned or delegated to the Administrative Agent or the Collateral Agent hereunder shall be taken or exercised, as the case may be, by the Administrative Agent or the Collateral Agent (or any co-agents, sub-agents or attorneys-in-fact designated by the Administrative Agent or the
Collateral Agent in accordance with the terms of the applicable Loan Document).
(2) The Administrative Agent shall also act as the sole
and exclusive “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a Lender and a potential Hedge Bank or Cash Management Bank) and the Issuing Banks hereby irrevocably appoints and
authorizes the Administrative Agent to act as the agent of (and to hold any security interest created by the Collateral Documents for and on behalf of or in trust for) such Lender and Issuing Bank 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 sole and exclusive
“collateral agent” (and any co-agents, sub-agents and attorneys-in-fact
appointed solely by the Administrative Agent pursuant to Section 9.07 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 and Article X
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with respect to the Administrative Agent (including Sections 10.04 and 10.05), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents. 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 (including any
Intercreditor Agreement), as contemplated by and in accordance with the provisions of this Agreement and the Collateral Documents and acknowledge and agree that any such action by any Agent shall bind the Lenders.
(3) (a) Each Lender (i) represents and warrants, as of the date such Person became a Lender party hereto, to, and (ii) covenants,
from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent, the Arrangers, the Issuing Banks and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(A) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one
or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
(B) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class
exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank
collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such
Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
(C) (I) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning
of Part VI of PTE 84-14), (II) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of
Credit, the Commitments and this Agreement, (III) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (IV) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(D) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole
discretion, and such Lender.
(b) In addition, unless Section 9.01(a)(A) is true with respect to
a Lender or such Lender has provided another representation, warranty and covenant as provided in Section 9.01(a)(D), such Lender further (x) represents and warrants, as of the date such Person became a Lender party
hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers, the Issuing Banks and their
respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative
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Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of
Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
SECTION 9.02 Rights as a Lender. Any Revolving Lender or Lender that is also serving as an Agent (including as Administrative
Agent) hereunder shall have the same rights and powers in its capacity as a Revolving Lender or Lender, respectively, as any other Revolving Lender or Lender, respectively, and may exercise the same as though it were not an Agent and the term
“Revolving Lender” or “Lender”, respectively, shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Revolving Lender or Lender, respectively (if any), serving as an Agent hereunder
in its individual capacity. Any such Person serving as an Agent and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the
Borrower or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to any Lender. The Lenders acknowledge that, pursuant to such activities, any Agent or its Affiliates may
receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that no Agent shall be under any
obligation to provide such information to them.
SECTION 9.03 Exculpatory Provisions. The Administrative Agent and Collateral
Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and in the other Loan Documents. Without limiting the generality of the foregoing, each Agent (including the Administrative Agent):
(1) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing and without
limiting the generality of the foregoing, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent or Arranger is not intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law and 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;
(2) shall not 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) (including any such direction set forth herein or in such other Loan Documents); provided that no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to
liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(3) shall not, except as expressly set forth
herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by any Person serving as an
Agent or any of its Affiliates in any capacity.
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Neither the Administrative Agent nor any of its Related Persons shall be liable for any
action taken or not taken by it (a) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (b) 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. The Administrative Agent shall be deemed not to have knowledge of any Default unless and
until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender, or an Issuing Bank.
No Agent nor any
of its Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (a) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (b) the
contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) 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, (d) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of
any Lien purported to be created by the Collateral Documents, (e) the value or the sufficiency of any Collateral or (f) 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. The duties of the Administrative Agent shall be mechanical and administrative in nature; the Administrative Agent shall not have by reason of this Agreement or any other Loan
Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Loan Document, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative
Agent any obligations in respect of this Agreement or any other Loan Document except as expressly set forth herein or therein.
Notwithstanding any other provision of this Agreement or any provision of any other Loan Document, each Arranger is named as such for
recognition purposes only, and in its capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Loan Documents or the transactions contemplated hereby and thereby; it being understood
and agreed that the Arrangers shall be entitled to all indemnification and reimbursement rights in favor of the Arrangers as, and to the extent; provided for under Section 10.05. Without limitation of the foregoing, no
Arranger shall, solely by reason of this Agreement or any other Loan Documents, have any fiduciary relationship in respect of any Lender or any other Person.
SECTION 9.04 Lack of Reliance on the Administrative Agent. Independently and without reliance upon the Administrative Agent, the
Arrangers and their respective Affiliates, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (a) its own independent investigation of the financial condition and affairs of the
Borrower and the Restricted Subsidiaries in connection with the making and the continuance of the Loans and the taking or not taking of any action in connection herewith and (b) its own appraisal of the creditworthiness of the Borrower and the
Restricted Subsidiaries and, except as expressly provided in this Agreement, the Administrative Agent and the Arrangers and any of their respective Affiliates shall not have any duty or responsibility, either initially or on a continuing basis, to
provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. The Administrative Agent, the Arrangers and
any of their respective Affiliates shall not be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Loan Document or the financial condition of the Borrower or any of the
Restricted Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Loan Document, or the financial condition of the Borrower or any
of the Restricted Subsidiaries or the
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existence or possible existence of any Default or Event of Default. The Administrative Agent or Collateral Agent may in good faith ask for such information or support it may deem reasonably
necessary to confirm that one or more Lenders in fact constitute either the Required Lenders or the Required Facility Lenders under any Facility before taking or declining to take any action under a Loan Document and none of the Administrative Agent
or Collateral Agent shall be deemed to be liable to any Lender for so taking or so declining to take such action until it shall have received such information so reasonably requested.
SECTION 9.05 Certain Rights of the Administrative Agent. If the Administrative Agent requests instructions from the Required
Lenders (or if appropriate the Required Facility Lenders) with respect to any act or action (including failure to act) in connection with this Agreement or any other Loan Document, the Administrative Agent shall be entitled to refrain from such act
or taking such action unless and until the Administrative Agent shall have received instructions from the Required Lenders or Required Facility Lenders, as the case may be; and the Administrative Agent shall not incur liability to any Lender by
reason of so refraining. Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from
acting hereunder or under any other Loan Document in accordance with the instructions of the Required Lenders or the Required Facility Lenders, as the case may be.
SECTION 9.06 Reliance by the Agents. The Agent shall be entitled to rely upon, and shall be fully protected and not incur
any liability in relying upon, any note, writing, resolution, notice, statement, certificate, telex, teletype or facsimile message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the
Administrative Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Loan Document and its duties hereunder and thereunder, upon advice of counsel selected by the Administrative
Agent. In determining compliance with any condition hereunder to the making of a Loan or the issuance, extension or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or
issuances of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by
it in accordance with the advice of any such counsel, accountants or experts.
SECTION 9.07 Delegation of Duties. The
Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Documents by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Agent-Related Persons. The
exculpatory provisions of this Article shall apply to any such sub agent and to the Agent-Related Persons of the Administrative Agent and any such sub agent, and shall apply to their respective activities with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
SECTION 9.08 Indemnification. Whether or not
the transactions contemplated hereby are consummated, to the extent any of the Administrative Agent, any other of its Agent-Related Persons (solely to the extent any such Agent-Related Person was performing services on behalf of the Administrative
Agent) or any Issuing Bank is not reimbursed and indemnified by the Borrower, the Lenders will reimburse and indemnify any of the Administrative Agent, any other of its Agent-Related Person (solely to the extent any such Agent-Related Person was
performing services on behalf of the Administrative Agent) or any Issuing Bank in proportion to their respective Pro Rata Shares for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by any of the
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Administrative Agent, any other of its Agent-Related Person (solely to the extent any such Agent-Related Person was performing services on behalf of the Administrative Agent) or any Issuing Bank
in performing its duties hereunder, under any other Loan Document, under any Letter of Credit or in any way relating to or arising out of this Agreement, any other Loan Document or the Letters of Credit; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from any of the Administrative Agent’s, any other of its Agent-Related
Person’s or any Issuing Bank’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). 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 Borrower;
provided that such reimbursement by the Lenders shall not affect the Borrower’s continuing reimbursement obligations with respect thereto; provided, further, that the failure of any Lender to indemnify or reimburse
the Administrative Agent shall not relieve any other Lender of its obligation in respect thereof. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.08
applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. The undertaking in this Section 9.08 shall survive termination of the Aggregate Commitments, the payment of all
other Obligations and the resignation of the Administrative Agent.
SECTION 9.09 The Administrative Agent in Its Individual
Capacity. With respect to its obligation to make Loans under this Agreement, the Administrative Agent shall have the rights and powers specified herein for a “Lender” or “Revolving Lender”, respectively, and may
exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Lender”, “Revolving Lender”, “Required Lenders”, “Required Facility Lenders” or any
similar terms shall, unless the context clearly indicates otherwise, include the Administrative Agent in its individual capacity. The Administrative Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind
of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Loan Party or any Affiliate of any Loan Party (or any Person engaged in a
similar business with any Loan Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Loan Party or any Affiliate of any Loan Party for services in connection
with this Agreement and otherwise without having to account for the same to the Lenders. The Lenders acknowledge that, pursuant to such activities, any Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates
(including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that no Agent shall be under any obligation to provide such information to them.
SECTION 9.10 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, the Collateral Agent, a Lender, Swing Line Lender or an
Issuing Bank hereunder, as the case may be. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “lead arranger” or “bookrunner” shall have any obligation, liability,
responsibility or duty under this Agreement other than (a) as expressly provided herein or (b) those applicable to all Lenders, but only to the extent acting in such capacity as a Lender.
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SECTION 9.11 Resignation by the Administrative Agent. The Administrative Agent
may resign from the performance of all its respective functions and duties hereunder or under the other Loan Documents at any time by giving thirty (30) days’ prior written notice to the Lenders and the Borrower. If the Administrative
Agent or a controlling Affiliate of the Administrative Agent becomes subject to a Lender-Related Distress Event, then the Administrative Agent may be removed as the Administrative Agent at the reasonable request of the Required Lenders. If the
Administrative Agent or a controlling Affiliate of the Administrative Agent becomes subject to an Agent-Related Distress Event, then the Borrower may remove the Administrative Agent from such role upon fifteen (15) days’ prior written
notice to the Lenders (or such shorter period as elected by the Borrower).
Notwithstanding anything to the contrary in this Agreement, no
successor Administrative Agent shall be appointed unless such successor Administrative Agent represents and warrants that it is (a) a “U.S. person” and a “financial institution” and that it will comply with its
“obligation to withhold”, each within the meaning of U.S. Treasury Regulations Section 1.1441-1 or (b) a Withholding U.S. Branch.
Upon any such notice of resignation by, or notice of removal of, the Administrative Agent, the Required Lenders shall appoint a successor
Administrative Agent hereunder or thereunder who shall be a commercial bank or trust company or other Person that customarily acts in an agency or trustee role in syndicated credit facilities, in each case, reasonably acceptable to the Borrower,
which acceptance shall not be unreasonably withheld or delayed (provided that the Borrower’s approval shall not be required if an Event of Default under Section 8.01(1) or, solely with respect to the Borrower,
Section 8.01(6) has occurred and is continuing).
If a successor Administrative Agent shall not have been so
appointed within such thirty (30) day period, the Administrative Agent, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed; provided that the Borrower’s consent shall not be required if an
Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) has occurred and is continuing), shall then appoint a successor Administrative Agent who shall serve
as Administrative Agent hereunder or thereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent, as provided above.
If no successor Administrative Agent has been appointed pursuant to the foregoing by the thirtieth (30th) day after the date such notice of resignation was given by the Administrative Agent or such notice of removal was given by the Required Lenders or the Borrower, as applicable, the Administrative
Agent’s resignation shall nonetheless become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent hereunder or under any other Loan Document until such time, if any, as the Required Lenders
appoint a successor Administrative Agent, as provided above. The retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held
by the Administrative Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security solely as a bailee until such time as a successor
Administrative Agent is appointed but shall have no other obligations with respect to such collateral security) and except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments,
communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender or Issuing Bank directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section 9.11.
Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder and, in the case of a successor’s appointment as Administrative Agent for purposes of the immediately succeeding clauses (a) and (b), 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 request, in order to (a) continue the
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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, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.11).
The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article IX and Sections 10.04 and 10.05 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Agent-Related Persons in respect of any actions taken or omitted to be taken by any of them while
the retiring Administrative Agent was acting as Administrative Agent.
Upon a resignation or removal of the Administrative Agent pursuant
to this Section 9.11, the Administrative Agent (a) shall continue to be subject to Section 10.09 and (b) shall remain indemnified to the extent provided in this Agreement and the other
Loan Documents and the provisions of this Article IX (and the analogous provisions of the other Loan Documents) shall continue in effect for the benefit of the Administrative Agent for all of its actions and inactions while serving as the
Administrative Agent.
SECTION 9.12 Collateral Matters. Each Lender (including in its capacities as a potential Cash
Management Bank, a potential Hedge Bank and a potential Specified Letter of Credit Issuer) irrevocably authorizes and directs the Administrative Agent and the Collateral Agent to take the actions to be taken by them as set forth in Sections
7.04 and 10.24.
Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree,
that, except as otherwise set forth herein, any action taken by the Required Lenders or the Required Facility Lenders, as applicable, in accordance with the provisions of this Agreement or the Collateral Documents, and the exercise by the Required
Lenders or the Required Facility Lenders, as applicable, of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent
is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time, to take any action with respect to any Collateral or Collateral Documents which may be necessary to
perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Collateral Documents.
Upon
request by the Administrative Agent at any time, the Lenders will confirm in writing the Collateral Agent’s authority to release or subordinate particular types or items of Collateral pursuant to this Section 9.12. In
each case as specified in this Section 9.12, Section 7.04 and Section 10.24, the applicable Agent will (and each Lender irrevocably authorizes the applicable Agent to), at
the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest
granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents, this Section 9.12,
Section 7.04 and Section 10.24.
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
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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 9.12, Section 7.04, Section 10.24 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 9.13 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law
or any 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 Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(1) 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, any Issuing Bank, the Administrative Agent and any other Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders, any Issuing Bank, the Administrative Agent, any other Agent and their respective agents and counsel and all other amounts due the Lenders, any Issuing Bank and the
Administrative Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding; and
(2) to collect and receive any
monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Lender and Issuing Bank 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 and relevant Issuing Banks, 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 the Administrative Agent under Sections 2.09 and
10.04.
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 or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize the Administrative Agent to vote in respect of the
claim of any Lender or Issuing Bank in any such proceeding.
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
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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 (a) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (b) the Administrative Agent shall be authorized 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 (j) of the first proviso to
Section 10.01(1) of this Agreement), (c) 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 (d) 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.
SECTION 9.14 Appointment of Supplemental Administrative Agents.
(1) 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 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 institution being referred to herein individually as a “Supplemental Administrative Agent” and collectively as “Supplemental Administrative Agents”).
(2) In the event that the Administrative Agent appoints a Supplemental Administrative Agent with respect to any Collateral, (a) 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 (b) the provisions of this Article IX and of Sections 10.04 and 10.05 that refer to the Administrative Agent shall inure to the benefit of such Supplemental
Administrative Agent and all references therein to the Administrative Agent shall be deemed to be references to the Administrative Agent or such Supplemental Administrative Agent, as the context may require.
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(3) Should any instrument in writing from any Loan Party be reasonably required by any
Supplemental Administrative Agent so appointed by the Administrative Agent for more fully and certainly vesting in and confirming to it such rights, powers, privileges and duties, the Borrower shall, or shall cause such Loan Party to, execute,
acknowledge and deliver any and all such instruments reasonably acceptable to it promptly upon request by the Administrative Agent. In case any Supplemental Administrative Agent, or a successor thereto, shall 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 9.15 Intercreditor Agreements. The Administrative Agent and Collateral Agent are hereby authorized to enter
into any Intercreditor Agreement to the extent contemplated by the terms hereof, and the parties hereto acknowledge that such Intercreditor Agreement is (and shall be) binding upon them. Each Secured Party agrees that the First Lien/Second Lien
Intercreditor Agreement, upon execution thereof, shall be binding upon them. Each Secured Party (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements, (b) hereby
authorizes, instructs and directs the Administrative Agent and Collateral Agent to enter into the Intercreditor Agreements and to subject the Liens on the Collateral securing the Obligations to the provisions thereof and (c) without any further
consent of the Lenders, hereby authorizes, instructs and directs the Administrative Agent and the Collateral Agent to negotiate, execute and deliver on behalf of the Secured Parties any intercreditor agreement or any amendment (or amendment and
restatement) to the Collateral Documents or any Intercreditor Agreement contemplated hereunder (including any such amendment (or amendment and restatement) of any intercreditor agreement to provide for the incurrence of any Indebtedness permitted
hereunder that will be secured by Liens on the Collateral on a junior lien or pari passu basis to the Obligations).
In addition, each
Secured Party hereby authorizes and directs the Administrative Agent and the Collateral Agent to enter into (a) any amendments to any Intercreditor Agreements, and (b) any other intercreditor arrangements, in the case of each of clauses
(a) and (b) to the extent required to give effect to the establishment of intercreditor rights and privileges as contemplated and required or permitted by this Agreement (including any such amendment (or amendment and restatement) of
any intercreditor agreement to provide for the incurrence of any Indebtedness permitted hereunder that will be secured by Liens on the Collateral on a junior lien or pari passu basis to the Obligations). Each Secured Party acknowledges and agrees
that any of the Administrative Agent and Collateral Agent (or one or more of their respective Affiliates) may (but are not obligated to) act as the “Debt Representative” or like term for the holders of Credit Agreement Refinancing
Indebtedness under the security agreements with respect thereto or any Intercreditor Agreement then in effect. Each Lender waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert
against any Agent or any of its affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto.
SECTION 9.16 Secured Cash Management Agreements, Secured Hedge Agreements and Specified Letters of Credit. Except as
otherwise expressly set forth herein or in any Guaranty or any Collateral Document, no Cash Management Bank, Hedge Bank or Specified Letter of Credit Issuer that obtains the benefits of Section 8.03, any Guaranty or any
Collateral by virtue of the provisions hereof or of any Guaranty or any 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 than in its capacity as a Lender 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, Obligations arising under Secured Cash Management Agreements, Secured
Hedge Agreements or Specified Letters of Credit unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management
Bank, Hedge Bank or Specified Letter of Credit Issuer, as the case may be.
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SECTION 9.17 Withholding Tax. To the extent required by any applicable Laws, the
Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 3.01, each Lender shall indemnify and hold
harmless the Administrative Agent against, and shall make payable in respect thereof within ten (10) days after demand therefor, all Taxes and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of
any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or
for the account of such Lender for any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the
exemption from, or reduction of withholding tax ineffective), whether or not such Taxes are correctly or legally imposed or asserted. Each Lender shall severally indemnify the Administrative Agent within ten (10) days after demand therefor, for
(a) any Non-Excluded Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such
Non-Excluded Taxes and without limiting the obligation of the Loan Parties to do so), (b) any Taxes attributable to such Lender’s failure to comply with the provisions of
Section 10.07(5) relating to the maintenance of a Participant Register and (c) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any
Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this
Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 9.17. The agreements in this Section 9.17 shall survive the resignation or replacement of the
Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. For purposes of this
Section 9.17, the term “Lender” includes any Issuing Bank and any Swing Line Lender.
SECTION 9.18 Erroneous Payments.
(1) Each Lender and each Issuing Bank hereby agrees that (a) if the Administrative Agent notifies such Lender or Issuing Bank that
the Administrative Agent has determined in its reasonable discretion that any funds received by such Lender or Issuing Bank from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise
erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, an
“Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Administrative Agent may
not make any such demand under this clause (1) with respect to an Erroneous Payment unless such demand is made within ten (10) Business Days of the date of receipt of such Erroneous Payment by the applicable Lender or Issuing Bank),
such Lender or Issuing Bank shall promptly, but in no event later than five (5) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in
same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid
to the Administrative Agent in same day funds at the greater of the Federal Funds Rate
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and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (b) to the extent permitted by
applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to
any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payments received, including, without limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A
notice of the Administrative Agent to any Lender or any Issuing Bank under this clause (1) shall be conclusive, absent manifest error.
(2) Without limiting the immediately preceding clause (1), each Lender and each Issuing Bank hereby further agrees that if
it receives a payment from the Administrative Agent (or any of its Affiliates) (a) 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, (b) that was
not preceded or accompanied by notice of payment, or (c) that such Lender or Issuing Bank otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then (i) (A) in the case of immediately preceding
clauses (a) or (b), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) in the case of immediately preceding clause (c), an error
and mistake has been made, in each case, with respect to such payment, and (ii) in each case, to the extent permitted by applicable Law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Payment, and hereby
waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payments received,
including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender and each Issuing Bank agrees that, in each such case, it shall promptly (and, in all events, within one
(1) Business Day of its knowledge of such error) notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in all events no later than three (3) Business Days thereafter,
return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and
including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(3) The
parties hereto agree that (a) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason (and without limiting the
Administrative Agent’s rights and remedies under this Section 9.18), the Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (b) an Erroneous
Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous
Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of paying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(4) In addition to any rights and remedies of the Administrative Agent provided by law, Administrative Agent shall have the right, without
prior notice to any Lender or Issuing Bank, any such notice being expressly waived by such Lender or Issuing Bank to the extent permitted by applicable Law, with respect to any Erroneous Payment for which a demand has been made in accordance with
this Section 9.18 and which has not been returned to the Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but
excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
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owing by Administrative Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender or Issuing Bank. Administrative Agent agrees promptly to notify
the Lender or Issuing Bank after any such setoff and application made by Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(5) Each party’s obligations, agreements and waivers under this Section 9.18 shall survive the resignation or
replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion
thereof) under any Loan Document.
(6) The provisions of this Section 9.18 are intended to reflect an agreement
among the Lenders, the Issuing Banks and the Administrative Agent (other than Section 9.18(4)) and the provisions hereof shall not constitute or create any obligations on the part of the Borrower or any other Loan Party.
ARTICLE X
Miscellaneous
SECTION 10.01 Amendments, Etc.
(1) 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 Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (other than (x) with respect to any amendment or waiver contemplated in clauses (h),
(i) or (j) below (in the case of clause (j), to the extent permitted by Section 2.14, but subject to the last proviso in such clause (j)), which shall only require the consent of the
Required Facility Lenders under the applicable Facility or Facilities, as applicable (and not the Required Lenders) and (y) with respect to any amendment or waiver contemplated in clauses (a), (b), (c), (d) or
(g) which shall only require the consent of the Lenders expressly set forth therein and not the Required Lenders) (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower or the applicable Loan Party, as
the case may be; 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 such Lender (it being understood that a
waiver of any condition precedent set forth in Article IV or the waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension or increase of any Commitment of any
Lender);
(b) postpone any date scheduled for, or reduce the amount of, any payment of principal or interest under
Section 2.07 or 2.08 (other than pursuant to Section 2.08(2)) or any payment of fees or premiums hereunder or under any Loan Document with respect to payments to any Lender without the
written consent of such Lender, it being understood that none of the following will constitute a postponement of any date scheduled for, or a reduction in the amount of, any payment of principal, interest, fees or premiums: (i) the waiver of
(or amendment to the terms of) any mandatory prepayment of the Loans, (ii) the waiver of any Default or Event of Default, (iii) any change to the definition of “Total Debt to Total Assets”, “Senior Debt to Total
Assets” or “Interest Coverage Ratio” or, in each case, in the component definitions thereof, (iv) the waiver of (or any amendment to the terms of) the MFN Provision and (v) the implementation of any Benchmark Replacement;
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(c) reduce the principal of, or the rate of interest specified herein on,
any Loan or Unreimbursed Amount, or any fees or other amounts payable hereunder or under any other Loan Document to any Lender without the written consent of such Lender, it being understood that none of the following will constitute a reduction in
any rate of interest or any fees: any change to the definition of “Total Debt to Total Assets”, “Senior Debt to Total Assets” or “Interest Coverage Ratio” or, in each case, in the component definitions thereof;
provided that (i) with respect to any Default Rate payable in respect of any Facility (including the Revolving Facility), only the consent of the Required Facility Lenders under such Facility shall be necessary to amend the definition of
“Default Rate” or waive any obligation of the Borrower to pay interest at the Default Rate, (ii) only the consent of the Swing Line Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the Default
Rate payable in respect of the Swing Line Facility and (iii) with respect to any Facility subject to the MFN Provision, only the consent of the Required Facility Lenders under such Facility shall be necessary to amend or waive the MFN Provision
as it relates to such Facility;
(d) except as contemplated by clause (III) in the second proviso immediately
succeeding Section 10.01(1)(j), change any provision of this Section 10.01 or the definition of “Required Lenders” or “Required Facility Lenders” or any other provision
specifying the number of Lenders or portion of the Loans or Commitments required to take any action under the Loan Documents, in each case to reduce any voting percentage or voting threshold specified thereunder without the written consent of each
Lender directly and adversely affected thereby (it being understood that neither the consent of the Required Lenders nor the consent of any Lender other than each Lender directly and adversely affected thereby shall be required in connection with
any change to the definition of “Required Facility Lenders” as it pertains to the Facility under which such directly and adversely affected Lender is a Lender);
(e) other than in a transaction permitted under Section 7.03, Section 7.04
or Section 7.05 as of the Closing Date, release all or substantially all of the aggregate value of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
(f) other than in a transaction permitted under Section 7.03, Section 7.04
or Section 7.05 as of the Closing Date, release all or substantially all of the aggregate value of the Guaranties, without the written consent of each Lender;
(g) except as contemplated by clause (III) in the second proviso immediately succeeding
Section 10.01(1)(j), amend, waive or modify (i) Section 2.13 or Section 2.05(2)(d), in each case in a manner that would alter the pro rata sharing of payments
required thereby specified therein or (ii) Section 8.03, in each case without the written consent of each Lender directly and adversely affected thereby;
(h) (x) amend, waive or otherwise modify any term or provision or (y) waive any Default or Event of Default that results
from any representation made or deemed made by any Loan Party in any Loan Document in connection with any Credit Extension under a Revolving Facility being untrue in any material respect as of the date made or deemed made, in each case of clauses
(x) and (y), which directly affects Lenders under one or more Revolving Facilities and does not directly affect Lenders under any other Facilities (it being understood that the waiver of any conditions set forth in
Section 4.02 as to any Credit Extension under one or more Revolving Facilities directly affects the Lenders under such Revolving Facilities and does not directly affect Lenders under any other Facilities), in each case,
without the written consent of the Required Facility Lenders under such applicable Revolving Facility or Facilities (and in the case of multiple
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Revolving Facilities which are affected, such Required Facility Lenders shall consent together as one Facility); provided, however, that the amendments, waivers or other
modifications described in this clause (h) shall not require the consent of the Required Lenders or any other Lenders other than the Required Facility Lenders under the applicable Revolving Facility or Facilities (it being
understood that any amendment to the conditions of effectiveness of Incremental Commitments set forth in Section 2.14 shall be subject to clause (j) below);
(i) amend, waive or otherwise modify any term or provision which directly affects Lenders under one or more Term Facilities and
does not directly affect Lenders under any other Facilities, in each case, without the written consent of the Required Facility Lenders under such applicable Term Facility or Facilities (and in the case of multiple Term Facilities which are
affected, such Required Facility Lenders shall consent together as one Facility); provided, however, that the amendments, waivers or other modifications described in this clause (i) shall not require the
consent of the Required Lenders or any other Lenders other than the Required Facility Lenders under the applicable Term Facility or Facilities (it being understood that any amendment to the conditions of effectiveness of Incremental Commitments set
forth in Section 2.14 shall be subject to clause (j) below); or
(j)
amend, waive or otherwise modify any term or provision (including the availability and conditions to funding (subject to the requirements of Section 2.14) with respect to Incremental Term Loans and Incremental Revolving
Commitments, but excluding the rate of interest applicable thereto which shall be subject to clause (c) above)) which directly affects Lenders of one or more Incremental Term Loans or Incremental Revolving Commitments and does not
directly affect Lenders under any other Facility, in each case, without the written consent of the Required Facility Lenders under such applicable Incremental Term Loans or Incremental Revolving Commitments (and in the case of multiple Facilities
which are affected, such Required Facility Lenders shall consent together as one Facility); provided, however, that, to the extent permitted under Section 2.14, no amendments or waivers described in this
clause (j) shall require the consent of the Required Lenders or any other Lenders and shall only require the consent of the Required Facility Lenders under such applicable Incremental Term Loans or Incremental Revolving
Commitments, including to the extent such amendment or waiver includes provisions that benefit the Lenders under any other Facility and are not adverse to such other Lenders (subject to any consent of the Administrative Agent required under
Section 2.14);
provided that:
(i) no amendment, waiver or consent shall, unless in writing and signed by each Issuing Bank in addition to the Lenders required above, affect
the rights or duties of such Issuing Bank under this Agreement or any Issuing Bank Document relating to any Letter of Credit issued or to be issued by it; provided, however, that this Agreement may be amended to adjust the mechanics
related to the issuance of Letters of Credit, including mechanical changes relating to the existence of multiple Issuing Banks, with only the written consent of the Administrative Agent, the applicable Issuing Bank and the Borrower so long as the
obligations of the Revolving Lenders, if any, who have not executed such amendment, and if applicable the other Issuing Banks, if any, who have not executed such amendment, are not adversely affected thereby;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lenders in addition to the Lenders required above,
affect the rights or duties of the Swing Line Lenders under this Agreement; provided, however, that this Agreement may be amended to adjust the borrowing mechanics related to Swing Line Loans with only the written consent of the
Administrative Agent, the Swing Line Lenders and the Borrower so long as the obligations of the Revolving Lenders, if any, who have not executed such amendment, are not adversely affected thereby;
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(iii) no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent or the Collateral Agent in addition to the Lenders required above, affect the rights, duties, obligations or responsibilities of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent,
respectively, under this Agreement or any other Loan Document; and
(iv) Section 10.07(7) 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;
provided further that notwithstanding the foregoing:
(A) no Defaulting Lender shall have any right to approve or disapprove of any amendment, waiver or consent hereunder (and any amendment, waiver
or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that the Commitment of such Defaulting Lender may not be
increased or extended without the consent of such Defaulting Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of the
Lenders);
(B) no Lender consent is required to effect any amendment or supplement to any Intercreditor Agreement (i) that is for the
purpose of adding the holders of Permitted Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or any other Permitted Indebtedness that is Secured Indebtedness (or a Debt Representative with respect thereto) as parties thereto, as
expressly contemplated by the terms of such Intercreditor Agreement, as applicable (it being understood that any such amendment, modification or supplement may make such other changes to the applicable Intercreditor Agreement as, in the good faith
determination of the Administrative Agent, are required to effectuate the foregoing and provided that such other changes are not adverse, in any material respect, to the interests of the Lenders) or (ii) that is expressly contemplated by
any Intercreditor Agreement in connection with joinders and supplements; provided further that no such agreement shall amend, modify or otherwise affect the rights, duties, responsibilities or obligations of the Administrative Agent or the
Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Collateral Agent, as applicable;
(C) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the
Borrower (i) 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, the Revolving Loans, the Swing Line Loans and L/C Obligations and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders; provided that the consent of the Lenders or the Required Lenders, as the case may be, shall not be required to make any such changes necessary to be made in connection with any
borrowing of Incremental Loans, any borrowing of Other Loans, any Extension or any borrowing of Replacement Loans and otherwise to effect the provisions of Section 2.14, 2.15 or 2.16 or the immediately
succeeding paragraph of this Section 10.01, respectively or to effect amendments to this Agreement or any other Loan Document as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to effect any provision
specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent;
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(D) any waiver, amendment or modification of this Agreement that by its terms affects the
rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by the
Borrower and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 10.01 if such Class of Lenders were the only Class of Lenders
hereunder at the time (or, in the case of any Incremental Facility, the percentage specified in the relevant Incremental Amendment);
(E)
any provision of this Agreement or any other Loan Document may be amended, modified or waived by an agreement in writing entered into by the Borrower and the Administrative Agent (or the Collateral Agent, as applicable), without the need to obtain
the consent of any other Lender, if such amendment, modification or waiver is delivered in order to (i) comply with Law or advice of local counsel, (ii) cure ambiguities, omissions, defects or inconsistencies or (iii) cause the
Guaranty, Collateral Documents or any other related document to be consistent with this Agreement and the other Loan Documents (including by adding additional parties as contemplated herein or therein), in each case (other than in the case of adding
additional Loan Parties as contemplated herein or therein), so long as the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five
(5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment;
(F) the Borrower and the Administrative Agent may, without the input or consent of the other Lenders, (i) effect changes to any Mortgage
as may be necessary or appropriate in the opinion of the Collateral Agent and (ii) effect changes to this Agreement that are necessary and appropriate to effect the offering process set forth in Section 2.05(1)(e);
(G) at any time prior to an Event of Default under Section 8.01(6), any fees payable to Lenders in connection
with any waiver, amendment or modification of this Agreement that subordinates the Liens on all or substantially all of the Collateral securing any Facility to the Liens securing any other Indebtedness for borrowed money or that subordinates all or
substantially all of the Obligations under any Facility in right of payment to such other Indebtedness for borrowed money, together with the bona fide right to participate in such other Indebtedness, shall be offered on a pro rata basis to each
Lender under such affected Facility (it being agreed that this clause shall not apply to any debtor-in-possession (or equivalent) financing or to any use of Collateral
in an insolvency proceeding); and
(H) at the option of the Borrower in consultation with the Administrative Agent, any provision of this
Agreement or any other Loan Document may be amended, modified or waived by an agreement in writing entered into by the Borrower and the Administrative Agent (or the Collateral Agent, as applicable), without the need to obtain the consent of any
other Lender, if such amendment, modification or waiver is delivered to incorporate terms that (x) would be favorable (as determined in good faith by the Borrower) to any existing Lenders or any existing Class or Classes of Lenders for the
benefit of such Lenders or such Class or Classes of Lenders and (y) would not directly and adversely affect any existing Lenders or any existing Class of Lenders; provided that the Administrative Agent (or the Collateral Agent,
as applicable) shall execute and deliver any such agreement unless the Administrative Agent (or the Collateral Agent, as applicable) does not agree, in its reasonable judgment, that such modification (x) is favorable to the existing Lenders or
such Class or Classes of Lenders or (y) does not directly and adversely affect any existing Lenders or existing any Class of Lenders (such agreement not be unreasonably withheld, conditioned or delayed).
(2) In addition, notwithstanding anything to the contrary contained in this Section 10.01, this Agreement may be
amended (each, a “Replacement Amendment”) with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Loans (as defined below) to permit the refinancing of all outstanding Term
Loans of any Class (“Replaced Loans”) with replacement term loans (“Replacement Loans”) hereunder; provided that,
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(a) the aggregate principal amount of such Replacement Loans shall not
exceed the aggregate principal amount of such Replaced Loans, plus accrued interest, fees, premiums (if any) and penalties thereon and reasonable fees and expenses incurred in connection with such refinancing of Replaced Loans with such
Replacement Loans and any other Incremental Amounts,
(b) the All-In Yield with
respect to such Replacement Loans (if denominated in the same currency as the Replaced Loans) (or similar interest rate spread applicable to such Replacement Loans) shall not be higher than the All-In Yield
for such Replaced Loans (or similar interest rate spread applicable to such Replaced Loans) immediately prior to such refinancing,
(c) other than in the case of any Permitted Earlier Maturity Debt, (i) such Replacement Loans shall not mature earlier
than the Maturity Date of the Replaced Loans and (ii) the Weighted Average Life to Maturity of such Replacement Loans shall not be shorter than the then-remaining Weighted Average Life to Maturity of such Replaced Loans at the time of such
refinancing,
(d) all other terms (other than with respect to pricing, interest rate margins, fees, discounts, rate floors
and prepayment or redemption terms) applicable to such Replacement Loans shall, at the option of the Borrower, (i) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (including, for the avoidance of
doubt, at the time of entering into any definitive documentation with respect to such Indebtedness or, if in connection with a Limited Condition Transaction, the applicable LCT Test Date) as determined by the Borrower in good faith, (ii) if not
otherwise consistent with the terms of such Replaced Loans, not be materially more restrictive to the Borrower (as determined by the Borrower in good faith), when taken as a whole, than the terms of such Replaced Loans, except, in each case under
this clause (ii), with respect to (A) covenants and other terms applicable to any period after the Latest Maturity Date of the Loans in effect immediately prior to such refinancing or (B) a Previously Absent Financial Maintenance
Covenant (so long as, to the extent that any such terms of any Replacement Loans contain a Previously Absent Financial Maintenance Covenant that is in effect prior to the applicable Latest Maturity Date of the Closing Date Term Loans or Closing Date
Revolving Facility, as applicable, such Previously Absent Financial Maintenance Covenant shall be included for the benefit of such Facility) or (iii) such terms as are reasonably satisfactory to the Administrative Agent (provided that,
at Borrower’s election, to the extent any term or provision is added for the benefit of the lenders of Replacement Loans, no consent shall be required from the Administrative Agent to the extent that such term or provision is also added, or
the features of such term or provision are provided, for the benefit of the Closing Date Term Loans),
(e) Replacement
Loans shall not at any time be guaranteed by any Subsidiary of the Borrower other than Subsidiaries that are Guarantors, and
(f) in the case of Replacement Loans that are secured, the obligations in respect thereof shall not be secured by any property
or assets of the Borrower or any Restricted Subsidiary other than the Collateral.
Notwithstanding anything to the contrary in this
Section 10.01, (x) each Replacement Amendment may, without the consent of any other Loan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in
the reasonable opinion
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of the Administrative Agent and the Borrower, to effect the provisions of this Section 10.01(2) (for the avoidance of doubt, this
Section 10.01(2) shall supersede any other provisions in this Section 10.01 to the contrary), including to effect technical and corresponding amendments to this Agreement and the other Loan
Documents and (y) at the option of the Borrower in consultation with the Administrative Agent, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the
applicable Class or Classes, in each case under this clause (y), so long as the Administrative Agent reasonably agrees that such modification is favorable to the applicable Lenders.
(3) In addition, notwithstanding anything to the contrary in this Section 10.01, if the Administrative Agent and the
Borrower shall have jointly identified an obvious error, mistake, ambiguity, incorrect cross-reference or any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Loan Document
(including, for the avoidance of doubt, any exhibit, schedule or other attachment to any Loan Document), then the Administrative Agent (acting in its sole discretion) and the Borrower or any other relevant Loan Party shall be permitted to amend such
provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document. Notification of such amendment shall be made by the Administrative Agent to the Lenders promptly upon such amendment
becoming effective.
(4) In addition, notwithstanding anything to the contrary in any Loan Document (including this
Section 10.01), in connection with any determination as to whether the requisite Lenders have (a) consented (or not consented) to any waiver, amendment or modification of any provision of this Agreement or any other
Loan Document or any departure by any Loan Party therefrom, (b) otherwise acted on any matter related to this Agreement or any Loan Document or (c) directed or required the Administrative Agent, the Collateral Agent or any Lender to
undertake any action (or refrain from taking any action) with respect to, or under, this Agreement or any other Loan Document, any Lender (other than an Excluded Lender) that, as a result of its interest (or its and its Covered Affiliates’
collective interests) in any total return swap, total rate of return swap, credit default swap or other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract entered
into pursuant to bona fide market making activities), has a net short position with respect to any of the Loans or Commitments hereunder or with respect to any other tranche, class or series of Indebtedness for borrowed money incurred or issued by
the Borrower or any of its Subsidiaries or Parent Companies at such time of determination (including commitments with respect to any revolving credit facility) (each such item of Indebtedness, including the Loan and Commitments, “Specified
Indebtedness” and each such Lender, a “Net Short Lender”) shall have no right to vote with respect to any waiver, amendment or modification of this Agreement or any other Loan Documents and shall be deemed to have voted
its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Net Short Lenders (including in any plan of reorganization). In connection with any waiver, amendment
or modification of this Agreement or the other Loan Documents, each Lender (other than any Excluded Lender) will be deemed to have represented to the Borrower and the Administrative Agent that it does not constitute a Net Short Lender, in each case,
unless such Lender shall have notified the Borrower and the Administrative Agent prior to the requested response date with respect to such waiver, amendment or modification that it constitutes a Net Short Lender (it being understood and agreed that
the Borrower and the Administrative Agent shall be entitled to rely on each such representation and deemed representation).
(5) For
purposes of the preceding clause (4):
(a) “Covered Affiliate” means any Affiliate of a Lender (provided
that for this purpose, Affiliates shall not include Persons that are subject to customary procedures to prevent the sharing of confidential information between such Lender and such Person if such Person has independent fiduciary duties to investors
or other equityholders of such Person and such investors or equityholders are not the same as the investors or equityholders of such Lender).
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(b) “Excluded Lender” means (i) any Lender or its
Affiliate that is a Regulated Bank, (ii) any Revolving Lender as of the Closing Date and (iii) any Affiliate of a Regulated Bank to the extent that (A) all of the equity of such Affiliate is directly or indirectly owned by either
(I) such Regulated Bank or (II) a parent entity that also owns, directly or indirectly, all of the equity of such Regulated Bank and (B) such Affiliate is a securities broker or dealer registered with the SEC under section 15 of the
Securities Exchange Act of 1934).
(c) “Regulated Bank” means a commercial bank with a consolidated
combined capital surplus of at least $5,000,000,000 that is (i) a U.S. depository institution the deposits of which are insured by the Federal Deposit Insurance Corporation; (ii) a corporation organized under section 25A of the U.S.
Federal Reserve Act of 1913; (iii) a branch, agency or commercial lending company of a foreign bank operating pursuant to approval by and under the supervision of the Board under 12 CFR part 211; (iv) a
non-U.S. branch of a foreign bank managed and controlled by a U.S. branch referred to in clause (iii); or (v) any other U.S. or non-U.S. depository institution or
any branch, agency or similar office thereof supervised by a bank regulatory authority in any jurisdiction.
(d) For
purposes of determining whether a Lender (alone or together with its Covered Affiliates) has a “net short position” on any date of determination: (i) derivative contracts with respect to any Specified Indebtedness and such
contracts that are the functional equivalent thereof shall be counted at the notional amount of such contract in Dollars, (ii) notional amounts in other currencies shall be converted to the Dollar equivalent thereof by such Lender in a
commercially reasonable manner consistent with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date of determination,
(iii) derivative contracts in respect of an index that includes the Borrower, any Parent Company or any Subsidiary or any instrument issued or guaranteed by the Borrower, any Parent Company or any Subsidiary shall not be deemed to create a
short position with respect to such Specified Indebtedness, so long as (A) such index is not created, designed, administered or requested by such Lender or its Covered Affiliates and (B) the Borrower, their Parent Companies and the other
Subsidiaries and any instrument issued or guaranteed by such persons, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives
Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall be deemed to create a short position with respect to the relevant Specified Indebtedness if such Lender or its Covered
Affiliates is a protection buyer or the equivalent thereof for such derivative transaction and (A) the relevant Specified Indebtedness is a “Reference Obligation” under the terms of such derivative transaction (whether specified by
name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by Markit (or any successor entity), if “Standard Reference Obligation” is specified as applicable in the
relevant documentation or in any other manner), (B) the relevant Specified Indebtedness would be a “Deliverable Obligation” under the terms of such derivative transaction or (C) the Borrower, any Parent Company or any Subsidiary is
designated as a “Reference Entity” under the terms of such derivative transaction and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a
short position with respect to any Specified Indebtedness if such transactions offer the Lender or its Covered Affiliates protection against a decline in the value of such Specified Indebtedness, or in the credit quality of the Borrower, any Parent
Company or any Subsidiary, in each case, other than as part of an index so long as (A) such index is not created, designed, administered or requested by such Lender or its Covered Affiliates and (B) any Parent Company, the Borrower and the
Subsidiaries, and any instrument issued or guaranteed by such persons, collectively, shall represent less than 5% of the components of such index.
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SECTION 10.02 Notices and Other Communications; Facsimile Copies.
(1) General. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as
provided in Section 10.02(2)), 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, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(a) if to the Borrower, the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and
(b) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative Questionnaire.
Notices and other communications sent by hand
or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given
during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next succeeding Business Day for the recipient). Notices and other communications delivered through electronic communications to the
extent provided in Section 10.02(2) shall be effective as provided in Section 10.02(2).
(2) Electronic Communication. 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 Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(3) Unless the Administrative Agent otherwise prescribes, (a) 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 succeeding Business Day for the recipient and (b) notices or communications posted to an Internet or intranet website shall be deemed received upon the posting of such notice or
communication.
(4) 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
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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 or any of its Agent-Related Persons (collectively, the “Agent Parties”) or any Arranger have any liability to the Borrower, 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 Borrower’s 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,
bad faith or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).
(5) Change of Address. Each Loan Party and the Administrative Agent may
change its address, facsimile, electronic mail address or telephone number for notices and other communications hereunder by written notice to the other parties hereto. Each other Lender may change its address, facsimile, electronic mail address or
telephone number for notices and other communications hereunder by written notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative
Agent has on record (a) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (b) 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 Borrower or its
securities for purposes of United States Federal or state securities laws.
(6) Reliance by the Administrative Agent. 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 Borrower even if (a) 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 (b) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the
Administrative Agent, each Lender and the Related Persons of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic
notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent and each of the parties hereto hereby consents to such recording.
SECTION 10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative 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.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection
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with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders;
provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder
and under the other Loan Documents, (b) any Issuing Bank or Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank or Swing Line Lender, as the case may be) hereunder and
under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.10 (subject to the terms of Section 2.13) or (d) any Lender from filing proofs
of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided further that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters
set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it
and as authorized by the Required Lenders.
SECTION 10.04 Costs and Expenses. The Borrower agrees (a) if the Closing Date
occurs and to the extent not paid or reimbursed on or prior to the Closing Date, to pay or reimburse the Administrative Agent and the Arranger with the “lead left” placement for all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and such Arranger incurred in connection with the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby (limited, in the case of legal fees and expenses, to all Attorney Costs of a single U.S. counsel (including, without limitation, those of any common diligence team at such identified
counsel for such Arranger) and, if necessary, a single local counsel in each relevant material jurisdiction) and (b) upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Borrower, to
pay or reimburse the Administrative Agent, each Issuing Bank, each Swing Line Lender and the other Lenders, taken as a whole, promptly following a written demand therefor for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement or protection of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses
incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, but limited, in the case of legal fees and expenses, to Attorney Costs to the Administrative Agent and the Lenders taken as a whole (and, if necessary, one
(1) local counsel in any relevant material jurisdiction and solely in the case of a conflict of interest, one (1) additional counsel in each relevant material jurisdiction to each group of affected parties similarly situated taken as a
whole). The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be
paid within thirty (30) calendar days following receipt by the Borrower 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; Limitation of Liability.
(1) Indemnification. The Borrower shall indemnify and hold harmless the Agents, each Issuing Bank, each Swing Line Lender, and each
other Lender, each Arranger and their respective Related Persons (collectively, the “Indemnitees”) from and against any and all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses to which any such Indemnitee may become subject arising out of, resulting from or in connection with (but limited, in the case of legal fees and expenses, to Attorney Costs of a single
U.S. counsel to all Indemnitees taken as a whole and, if
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reasonably necessary, a single local counsel for all such Indemnitees taken as a whole in each relevant material jurisdiction and Attorney Costs of a single U.S. counsel to the Agents and their
Related Persons taken as a whole, and solely in the case of an actual conflict of interest between Indemnitees where the Indemnitees affected thereby inform the Borrower of such conflict in writing, one additional counsel in each relevant material
jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) any actual or threatened claim, litigation, investigation or proceeding relating to the Transactions or to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents, the Loans, the Letters of Credit or the use, or proposed use of the proceeds therefrom (including any refusal by any Issuing Bank 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), whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending
or threatened claim, litigation, investigation or proceeding), and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or expenses resulted from (a) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Indemnified
Persons as determined by a final, non-appealable judgment of a court of competent jurisdiction, (b) a material breach of any obligations under any Loan Document by such Indemnitee or any of its Related
Indemnified Persons as determined by a final, non-appealable judgment of a court of competent jurisdiction or (c) any dispute solely among Indemnitees other than any claims against an Indemnitee in its
capacity or in fulfilling its role as an administrative agent or arranger or any similar role under any Loan Document and other than any claims arising out of any act or omission of the Borrower or any of its Affiliates (as determined by a final, non-appealable judgment of a court of competent jurisdiction). To the extent that the undertakings to indemnify and hold harmless set forth in this Section 10.05 may be unenforceable in whole or in part because
they are violative of any applicable Law or public policy, the Borrower shall contribute the maximum portion that it is permitted to pay and satisfy under applicable Law to the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05(1) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated
hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05(1) shall be paid within thirty (30) calendar days after written demand therefor, which demand shall set forth
such amounts in reasonable detail. This Section 10.05(1) shall not apply to Taxes, except any Taxes that represent losses, claims or damages arising from any non-tax claim.
Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return promptly any and all amounts paid by any Loan Party or any of its Affiliates under this Section 10.05(1) to such Indemnitee for any such
fees, expenses, losses, claims, liabilities or damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof.
(2) None of the Agents, the Issuing Banks, the Swing Line Lenders, any other Lender, any Arranger or any of their respective Related Persons
(collectively, the “Lender Related Persons”) 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 (except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or
gross negligence of such Lender Related Person or any of its Related Persons or material breach of any obligations by such Lender Related Person or any of its Related Persons), nor shall any Lender 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) (other than, in the
case of any Loan Party, in respect of any such damages incurred or
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paid by an Indemnitee to a third party for which such Indemnitee is otherwise entitled to indemnification pursuant to Section 10.05(1)).
(3) 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.
SECTION 10.06 Marshaling; Payments Set Aside. None of the Administrative Agent or any Lender shall be under any obligation to
marshal any assets in favor of the Loan Parties or any other party or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of the Borrower is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or
part thereof originally intended to be satisfied shall 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 Overnight Rate from time to
time in effect.
SECTION 10.07 Successors and Assigns.
(1) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
registered assigns permitted hereby, except that the Borrower may not, except as permitted by Section 7.03, assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder (including to existing Lenders and their Affiliates) except (a) to an assignee in accordance with the provisions of
Section 10.07(2) (such an assignee, an “Eligible Assignee”) and (i) in the case of any Eligible Assignee that, immediately prior to or upon giving effect to such assignment, is an Affiliated Lender,
in accordance with the provisions of Section 10.07(8), (ii) in the case of any Eligible Assignee that is the Borrower or any Subsidiary, in accordance with the provisions of Section 10.07(12) or
(iii) in the case of any Eligible Assignee that, immediately prior to or upon giving effect to such assignment, is a Debt Fund Affiliate, in accordance with the provisions of Section 10.07(11), (b) by way of
participation in accordance with the provisions of Section 10.07(4), (c) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(6) and (d) to an SPC
in accordance with the provisions of Section 10.07(7) (and any other attempted assignment or transfer by any party hereto shall be null and void) (or in the case of any such attempted assignment or transfer to a
Disqualified Institution shall be subject to the provisions set forth in the fourth sentence of the definition of “Lender”). 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, the Indemnitees, Participants to the extent provided in Section 10.07(4) and, to the extent expressly contemplated hereby, Related Persons of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(2)
Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this
Section 10.07(2), participations in L/C Obligations and Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
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(a) Minimum Amounts.
(i) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(ii) in any case not described in clause (i) above, the aggregate amount of the Commitment or, the principal
outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent shall not be less than
$1,000,000, in the case of Term Loans, and not less than $5,000,000, in the case of Revolving Loans and Revolving Commitments, unless each of the Administrative Agent and, so long as no Event of Default under
Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6), has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed); provided that, solely with respect to assignments of the Term Loans, the consent of the Borrower shall be deemed given if the Borrower has not responded to such request for consent within ten (10) Business Days of receipt by a
Responsible Officer of the Borrower in writing of such request; provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(b) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned (it being understood that assignments under separate Facilities shall not be required to be made on a pro rata basis).
(c) Required Consents. No consent shall be required for any assignment except to the extent required by
Section 10.07(2)(a)(ii) and, in addition:
(i) the prior written consent of the Borrower and the
Manager (in the case of any assignment of Term Loans, such consent not to be unreasonably withheld or delayed, and, in the case of Commitments or Loans under any Revolving Facility, to be given in their sole discretion) shall be required unless
(A) an Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) has occurred and is continuing at the time of such assignment determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent, or (B) in respect of an assignment by a given Lender of all or a portion of the Term Loans only, such assignment is to an Affiliate of such
Lender or an Approved Fund of such Lender; provided that, notwithstanding the foregoing, it shall not be unreasonable for the Borrower or the Manager to withhold its consent to any assignment to any Person that invests (including any Person
that manages or advises funds that invest) directly or indirectly, including through Affiliates, in distressed debt or “special situations” or “opportunities” or that is not expressly a Disqualified Institution but is known
by the Borrower or the Manager to be an Affiliate of a Disqualified Institution without regard as to whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name; provided
further that no consent of the Borrower or the Manager shall be required for an assignment of all or a portion of the Loans pursuant to
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Section 10.07(8), (11) or (12); provided, however, that, (I) solely in respect of assignments of Term Loans, the consent of the Borrower or the
Manager, as applicable, shall be deemed given if the Borrower or the Manager, as applicable, has not responded to such request for consent within ten (10) Business Days of receipt by a Responsible Officer of the Borrower or the Manager, as
applicable, in writing of such request and (II) in the case of Commitments or Loans under any Revolving Facility, other than with respect to an assignment by a Lender to an Affiliate of such Lender or an Approved Fund with respect to such
Lender, the Borrower and the Manager shall be notified in writing of any proposed assignment not less than five (5) Business Days in advance thereof;
(ii) the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or
delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; provided that no consent of the Administrative Agent shall be required for an
assignment of all or a portion of the Loans pursuant to Section 10.07(8), (11) or (12);
(iii) the prior written consent of each applicable Issuing Bank at the time of such assignment (such consent not to be
unreasonably withheld, conditioned or delayed) shall be required; provided that no consent of the applicable Issuing Bank shall be required for any assignment not related to Revolving Commitments or Revolving Exposure; and
(iv) the prior written consent of each Swing Line Lender (such consent not to be unreasonably withheld, conditioned or
delayed) shall be required; provided that no consent of a Swing Line Lender shall be required for any assignment not related to Revolving Commitments or Revolving Exposure.
(d) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of
$3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent and shall not be required for assignments by a Lender to an Affiliate or Approved Fund of such Lender). Other than in the case of assignments pursuant to
Section 10.07(12), the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire and all applicable tax forms and “know your customer”
documentation (with respect to such Eligible Assignee).
(e) No Assignments to Certain Persons. No such assignment
shall be made (i) to the Borrower or any Subsidiary except as permitted under Sections 2.05(1)(e) and 10.07(12), (ii) subject to Section 10.07(8), (11) or (12) below,
to any Affiliate of the Borrower, (iii) to a natural person, (iv) to any Disqualified Institution or (v) to any Defaulting Lender.
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless
and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or sub participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable Pro Rata Share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
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assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender
hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share. Notwithstanding the
foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall
be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording
thereof by the Administrative Agent pursuant to Section 10.07(3) (and, in the case of an Affiliated Lender or a Person that, after giving effect to such assignment, would become an Affiliated Lender, to the requirements of
Section 10.07(8)), from and after the effective date specified in each Assignment and Assumption, other than in connection with an assignment pursuant to Section 10.07(12), (x) the 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 (y) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 10.04 and 10.05 with respect to facts and circumstances occurring prior to the effective
date of such assignment), but shall in any event continue to be subject to Section 10.09. Upon request, and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute and deliver a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.07(2) 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(4).
EACH LENDER
HEREBY ACKNOWLEDGES THAT THE BORROWER OR ANY OF THEIR RESPECTIVE SUBSIDIARIES AND ANY AFFILIATED LENDER (INCLUDING ANY INVESTOR) AND ANY DEBT FUND AFFILIATE MAY FROM TIME TO TIME PURCHASE OR TAKE ASSIGNMENT OF TERM LOANS HEREUNDER IN ACCORDANCE WITH
THE PROVISIONS SET FORTH IN THIS AGREEMENT, INCLUDING PURSUANT TO SECTION 2.05 AND THIS SECTION 10.07 (INCLUDING THROUGH OPEN MARKET PURCHASES (INCLUDING OTHER PRIVATELY NEGOTIATED PURCHASES (INCLUDING EXCHANGES)), AND THERE SHALL BE
NO REQUIREMENT FOR ANY SUCH PERSON TO MAKE ANY REPRESENTATION AS TO ITS POSSESSION OF ANY UNDISCLOSED INFORMATION THAT MAY BE MATERIAL TO SUCH PURCHASE OR ASSIGNMENT.
(3) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower,
shall maintain at one of the Administrative Agent’s Offices a copy of each Assignment and Assumption delivered to it, each Affiliated Lender Assignment and Assumption delivered to it, each notice of cancellation of any Loans delivered by the
Borrower pursuant to Section 10.07(8) or 10.07(12) below, and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related stated interest
amounts) of the Loans, L/C Obligations (specifying Unreimbursed Amounts), L/C Borrowings and amounts due under Section 2.03, owing to each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the 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 Borrower, any Agent (and in the case of the Administrative Agent, any Affiliate thereof) and, with
respect to its own Loans, any Lender, at any reasonable time and from time to time upon reasonable prior
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written notice. The parties intend that all Loans will be at all times maintained in “registered form” under the Code or United States Treasury Regulations, including within the
meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related Treasury regulations (or any other relevant or successor provisions of the Code or of such Treasury regulations). Notwithstanding the foregoing, in no event shall the
Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender, nor shall the Administrative Agent be obligated to monitor the aggregate amount of the Term Loans or Incremental Term Loans held by
Affiliated Lenders.
(4) Any Lender may at any time sell participations to any Person (other than a natural person, the Borrower and its
Affiliates, a Defaulting Lender or a Disqualified Institution) (each, a “Participant”) in all or a portion of such Lender’s rights or obligations under this Agreement (including all or a portion of its Commitment or the
Loans (including such Lender’s participations in L/C Obligations or Swing Line Loans) owing to it); provided that (a) such Lender’s obligations under this Agreement shall remain unchanged, (b) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations, (c) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement, (d) in the case of any sale of a participation in a Revolving Facility, the Lender shall notify the Borrower and the Manager in writing no less than five (5) Business Days in advance thereof, and
(e) in the case of any sale of a participation in a Revolving Facility, the prior written consent of the Manager shall be required solely to the extent that such consent would apply under Section 10.07(2)(c)(i) if the
participation were an assignment. 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 any other Loan Document; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in the first proviso to Section 10.01(1) (other than clauses (g), (h) and (i) thereof) that directly and adversely affects such Participant. Subject to
Section 10.07(5), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 (subject to the requirements of Section 3.01 (including, for the avoidance of
doubt, Sections 3.01(2), (3) and (4), as applicable) as though it were a Lender; provided further that any forms required to be provided under Section 3.01(3) shall be provided solely to the
participating Lender) and 3.04 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(2). To the extent permitted by applicable Law, each Participant also
shall be entitled to the benefits of Section 10.10 as though it were a Lender; provided further that such Participant shall agree to be subject to Section 2.13 as though it were a Lender.
(5) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under
Sections 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall (acting solely for this purpose as a non-fiduciary agent of
the Borrower) maintain a register complying with the requirements of Sections 163(f), 871(h) and 881(c)(2) of the Code and the Treasury regulations issued thereunder on which is entered the name and address of each Participant and the principal
amounts (and related stated interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender and the Borrower shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary;
provided that no Lender shall have the obligation to disclose all or a portion of the Participant Register (including the identity of the Participant or any information relating to a Participant’s interest in any commitments, loans,
letters of credit or other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that any such commitments, loans, letters of credit or
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other obligations are in registered form for U.S. federal income tax purposes or such disclosure is otherwise required under Treasury Regulations
Section 5f.103-1(c), proposed Treasury Regulations Section 1.163-5 or any applicable temporary, final or other successor regulations. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(6) 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 any 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.
(7) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the
Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (a) nothing herein shall constitute a
commitment by any SPC to fund any Loan, (b) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and
(c) such SPC and the applicable Loan or any applicable part thereof shall be appropriately reflected in the Participant Register. Each party hereto hereby agrees that (a) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Sections 3.01 or 3.04), (b) no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement for which a Lender would be liable and (c) 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 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 (a) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee of $3,500 (which processing fee may be waived by the Administrative Agent
in its sole discretion), assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (b) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC.
(8) Any Lender may at any time assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to a
Person who is or will become, after such assignment, an Affiliated Lender through (a) Dutch auctions or other offers to purchase or take by assignment open to all applicable Lenders on a pro rata basis in accordance with procedures determined
by such Affiliated Lender in its sole discretion or (b) open market purchase (or other privately negotiated purchases (including exchanges)) on a non-pro rata basis, in each case subject to the
following limitations:
(i) Affiliated Lenders will not receive information provided solely to Lenders by the
Administrative Agent or any Lender and will not be permitted to attend or participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of prepayments and other
administrative notices in respect of its Loans or Commitments required to be delivered to Lenders pursuant to Article II and financial statements and reports delivered to Lenders pursuant to Article VI;
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(ii) each Lender (other than an Affiliated Lender) will waive any potential
claims arising from the Borrower, the Investor, the Manager, any Affiliated Lender or any Debt Fund Affiliate being in possession of undisclosed information that may be material to such Lender’s decision to participate in such repurchase or
assignment (unless such requirement is waived by the Borrower);
(iii) each Lender (other than any other Affiliated Lender)
that assigns any Loans to an Affiliated Lender pursuant to clause (b) above shall deliver to the Administrative Agent and the Borrower a customary Big Boy Letter;
(iv) the aggregate principal amount of Term Loans under this Agreement held by Affiliated Lenders at the time of any such
purchase or assignment shall not exceed 30.0% of the aggregate principal amount of Term Loans outstanding at such time under this Agreement (such percentage, the “Affiliated Lender Cap”); provided that to the extent any
assignment to an Affiliated Lender would result in the aggregate principal amount of all Term Loans of any Class held by Affiliated Lenders exceeding the Affiliated Lender Cap, the assignment of such excess amount will be void ab initio;
(v) as a condition to each assignment pursuant to this Section 10.07(8), the Administrative
Agent and the Borrower shall have been provided a notice in connection with each assignment to an Affiliated Lender or a Person that upon effectiveness of such assignment would constitute an Affiliated Lender pursuant to which such Affiliated Lender
(in its capacity as such) shall waive any right to bring any action in connection with such Loans against the Administrative Agent, in its capacity as such; and
(vi) the assigning Lender and the Affiliated Lender purchasing such Lender’s Term Loans shall execute and deliver to the
Administrative Agent an assignment agreement substantially in the form of Exhibit D-2 hereto (an “Affiliated Lender Assignment and Assumption”).
Notwithstanding anything to the contrary contained herein, any Affiliated Lender that has purchased Term Loans pursuant to this
Section 10.07(8) may, in its sole discretion, contribute, directly or indirectly, the principal amount of such Term Loans or any portion thereof, plus all accrued and unpaid interest thereon, to the Borrower for the
purpose of cancelling and extinguishing such Term Loans. Upon the date of such contribution, assignment or transfer, (x) the aggregate outstanding principal amount of Term Loans shall reflect such cancellation and extinguishing of the Term
Loans then held by the Borrower and (y) the Borrower shall promptly provide notice to the Administrative Agent of such contribution of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of
the applicable Term Loans in the Register.
Each Affiliated Lender agrees to notify the Administrative Agent and the Borrower promptly
(and in any event within ten (10) Business Days) if it acquires any Person who is also a Lender, and each Lender agrees to notify the Administrative Agent and the Borrower promptly (and in any event within ten (10) Business Days) if it
becomes an Affiliated Lender. The Administrative Agent may conclusively rely upon any notice delivered pursuant to the immediately preceding sentence or pursuant to clause (v) of this
Section 10.07(8) and shall not have any liability for any losses suffered by any Person as a result of any purported assignment to or from an Affiliated Lender.
(9) Notwithstanding anything in Section 10.01 or the definition of “Required Lenders”, or
“Required Facility Lenders” to the contrary, for purposes of determining whether the Required Lenders and Required Facility Lenders (in respect of a Class of Term Loans) have (a) consented (or not
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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, or subject to
Section 10.07(10), any plan of reorganization pursuant to the U.S. Bankruptcy Code, (b) otherwise acted on any matter related to any Loan Document or (c) directed or required the Administrative Agent or any Lender
to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, no Affiliated Lender shall have any right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender
to take (or refrain from taking) any such action and, except with respect to any amendment, modification, waiver, consent or other action (x) in Section 10.01 requiring the consent of all Lenders, all Lenders directly
and adversely affected or specifically such Lender, (y) that alters an Affiliated Lender’s pro rata share of any payments given to all Lenders or (z) affects the Affiliated Lender (in its capacity as a Lender) in a manner that
is disproportionate to the effect on any Lender in the same Class, the Loans held by an Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Lender vote (and shall be deemed to have been voted in the
same percentage as all other applicable Lenders voted if necessary to give legal effect to this paragraph) (but, in any event, in connection with any amendment, modification, waiver, consent or other action, shall be entitled to any consent fee,
calculated as if all of such Affiliated Lender’s Loans had voted in favor of any matter for which a consent fee or similar payment is offered).
(10) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, each Affiliated Lender hereby agrees that, and
each Affiliated Lender Assignment and Assumption shall provide a confirmation that, if a proceeding under any Debtor Relief Law shall be commenced by or against the Borrower or any other Loan Party at a time when such Lender is an Affiliated Lender,
such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Term Loans held by such Affiliated Lender in any manner in the Administrative Agent’s sole
discretion, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Term Loans held by it as the Administrative Agent directs and, in furtherance of the foregoing,
any such Affiliated Lender hereby grants to the Administrative Agent a power of attorney and proxy (each being irrevocable and coupled with an interest), giving the Administrative Agent the right to vote each Affiliated Lender’s claims on all
matters submitted to the Lenders for consent in respect of such proceeding under any Debtor Relief Law; provided that such Affiliated Lender shall be entitled to vote in accordance with its sole discretion (and not in accordance with the
direction of the Administrative Agent) in connection with any plan of reorganization to the extent any such plan of reorganization proposes to treat any Obligations held by such Affiliated Lender in a disproportionately adverse manner than the
proposed treatment of similar Obligations held by Term Lenders that are not Affiliated Lenders.
(11) Although any Debt Fund Affiliate(s)
shall be Eligible Assignees and shall not be subject to the provisions of Section 10.07(8), (9) or (10), any Lender may, at any time, assign all or a portion of its rights and obligations with respect to Term
Loans or Term Commitments under this Agreement to a Person who is or will become, after such assignment, a Debt Fund Affiliate only through (a) Dutch auctions or other offers to purchase or take by assignment open to all Lenders on a pro rata
basis in accordance with procedures of the type described in Section 2.05(1)(e) (for the avoidance of doubt, without requiring any representation as to the possession of material
non-public information by such Affiliate) or (b) open market purchase (including other privately negotiated purchases (including exchanges)) on a non-pro rata
basis. Notwithstanding anything in Section 10.01 or the definition of “Required Lenders” or “Required Facility Lenders” to the contrary, for purposes of determining whether the Required Lenders or
the Required Facility Lenders have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom,
(ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document,
all Term Loans and Term Commitments held by Debt Fund Affiliates, in the aggregate, may not account for more than 49.9% of the Term Loans and Term Commitments included in the determination of “the Required Lenders” or “Required
Facility Lenders”.
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(12) Any Lender may, so long as no Event of Default has occurred and is continuing, at any
time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to the Borrower or any Subsidiary through (a) Dutch auctions or other offers to purchase open to all Lenders of a given Class on a
pro rata basis in accordance with procedures of the type described in Section 2.05(1)(e) or (b) open market purchases (including other privately negotiated purchases (including exchanges) on a non-pro rata basis; provided that:
(i) (A) if the assignee is a Restricted
Subsidiary of the Borrower, upon such assignment, transfer or contribution, the applicable assignee shall automatically be deemed to have contributed or transferred the principal amount of such Term Loans, plus all accrued and unpaid interest
thereon, to the Borrower or (B) if the assignee is the Borrower (including through contribution or transfers set forth in clause (A)), (I) the principal amount of such Term Loans, along with all accrued and unpaid
interest thereon, so contributed, assigned or transferred to the Borrower shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (II) the aggregate outstanding principal amount of Term
Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower and (III) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or
transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register;
(ii) each Lender (other than an Affiliated Lender) that assigns any Loans to the Borrower or any Subsidiary pursuant to
clause (b) above shall deliver to the Administrative Agent and the Borrower a customary Big Boy Letter; and
(iii) purchases of Term Loans pursuant to Section 10.07(12)(a) may not be funded with the proceeds of
Revolving Loans (unless, after giving effect to such purchase, the sum of (A) the aggregate Revolving Commitments less the aggregate Revolving Exposure of all Revolving Lenders plus (B) the Liquidity is at least $25,000,000).
(13) Notwithstanding anything to the contrary contained herein, without the consent of the Borrower or the Administrative Agent,
(a) 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 (b) 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; provided further that
no Lender may create a security interest in all or any portion of the Loans owing to it or any Note held by it in favor of a Disqualified Institution.
(14) Notwithstanding anything to the contrary herein, each of the Borrower and each Lender acknowledge and agree that the Administrative Agent
shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof
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relating to Disqualified Institutions, including whether any Lender or potential Lender is a Disqualified Institution. Without limiting the generality of the foregoing, the Administrative Agent
shall not (a) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (b) have any liability with respect to or arising out of any
assignment or participation of Loans or Commitments, or disclosure of confidential information, to any Disqualified Institution (regardless of whether the consent of the Administrative Agent is required thereto), and none of the Borrower, any Lender
or their respective Affiliates will bring any claim to such effect.
(15) Notwithstanding anything herein to the contrary, the Investor
and TPG Capital BD, LLC shall each be an express third party beneficiary of the provisions in this Section 10.07.
SECTION 10.08
Resignation of Issuing Bank and Swing Line Lender. Notwithstanding anything to the contrary contained herein, any Issuing Bank or Swing Line Lender may, upon thirty (30) Business Days’ notice to the Borrower and the Lenders, resign
as an Issuing Bank or Swing Line Lender, respectively, so long as on or prior to the expiration of such 30-Business Day period with respect to such resignation, the relevant Issuing Bank or Swing Line Lender
shall have identified a successor Issuing Bank or Swing Line Lender reasonably acceptable to the Borrower willing to accept its appointment as successor Issuing Bank or Swing Line Lender, as applicable. In the event of any such resignation of an
Issuing Bank or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders willing to accept such appointment a successor Issuing Bank or Swing Line Lender hereunder; provided that no failure by the Borrower to
appoint any such successor shall affect the resignation of the relevant Issuing Bank or Swing Line Lender, as the case may be, except as expressly provided above. If an Issuing Bank resigns as an Issuing Bank, it shall retain all the rights and
obligations of an Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an Issuing Bank 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(3)). If a Swing Line Lender resigns as a Swing Line Lender, it shall retain all the rights of a Swing Line Lender provided
for hereunder with respect to Swing Line Loans made by it 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(3)).
SECTION 10.09 Confidentiality. Each of the Agents, the Arrangers, the
Lenders and each Issuing Bank agrees to maintain the confidentiality of the Information in accordance with its customary procedures (as set forth below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, legal counsel, independent auditors, agents, trustees, managers, controlling Persons, current or prospective funding sources or investors, advisors and representatives, in each
case who need to know such information (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, with such Affiliate
being responsible for such Person’s compliance with this Section 10.09; provided, however, that such Agent, such Arranger, such Lender or such Issuing Bank, as applicable, shall be principally liable to
the extent this Section 10.09 is violated by one or more of its Affiliates or any of its or their respective partners, directors, officers, employees, legal counsel, independent auditors, agents, trustees, managers, controlling Persons, funding
sources, advisors or representatives), (b) to the extent requested or demanded by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance
Commissioners); provided, however, that each Agent, each Arranger, each Lender and each Issuing Bank agrees to notify the Borrower promptly thereof (except in connection with any periodic regulatory filing or request as part of a
regulatory examination or audit) to the extent it is legally permitted to do so, (c) to the extent required by applicable laws or regulations or by any subpoena or otherwise (including by order of any court or administrative agency) as required
by applicable Law or regulation or as requested by a governmental authority; provided that such Agent, such Arranger, such Lender or such Issuing Bank, as
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applicable, agrees that it will notify the Borrower as soon as practicable in the event of any such disclosure by such Person (except in connection with any periodic regulatory filing or request
as part of a regulatory examination or audit) unless such notification is prohibited by law, rule or regulation, (d) to any Lenders or participants or prospective Lenders or participants, derivative counterparties or prospective derivative
counterparties or insurance counterparties or prospective insurance counterparties (in each case, other than Disqualified Institution); provided that such disclosure shall be made subject to the acknowledgment and acceptance by such actual or
prospective Lender, participant or derivative counterparty that such Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to the Borrower, the
Agents and the Arrangers, and the Borrower shall be an express third-party beneficiary of such agreement), (e) for purposes of establishing a “due diligence” defense, (f) on a confidential basis to service providers to the Agents
and the Lenders in connection with the administration, settlement and management of this Agreement and the credit facilities provided hereunder, (g) with the consent of the Borrower, (h) to market data collectors for customary purposes in
the lending industry in connection with the Facilities, (i) to enforce their respective rights hereunder or under any other Loan Document, (j) to the extent such Information (I) becomes publicly available other than as a result of a
breach by any Person of this Section 10.09 or any other confidentiality provision in favor of any Loan Party, (II) becomes available to any Agent, any Arranger, any Lender, any Issuing Bank or any of their respective
Affiliates on a non-confidential basis from a source other than the Borrower or any Subsidiary thereof, and which source is not known by such Agent, such Lender, such Issuing Bank or the applicable Affiliate
to be subject to a confidentiality restriction in respect thereof in favor of the Borrower or any Affiliate thereof or (III) is independently developed by the Agents, the Lenders, the Issuing Banks, the Arrangers or their respective Affiliates,
in each case, so long as not based on information obtained in a manner that would otherwise violate this Section 10.09, (k) to ratings agencies in connection with the Transactions and private ratings; provided that
such information is only supplied to ratings agencies on a customary basis, or (l) to the extent permitted under Section 10.20. Notwithstanding the foregoing, no Agent, Arranger, Lender or Issuing Bank may disclose
Information to any of its Affiliates (including, for the avoidance of doubt, such Affiliates’ partners, directors, officers, employees, legal counsel, independent auditors, agents, trustees, managers, controlling Persons, funding sources,
advisors and representatives) that are engaged as principals primarily in private equity, mezzanine financing or venture capital (such Persons, “Excluded Affiliates”), other than (x) to a limited number of senior employees
who are required, in accordance with industry regulations or such Agent’s, Arranger’s, Lender’s or Issuing Bank’s internal policies and procedures to act in a supervisory capacity and (y) to such Agent’s,
Arranger’s, Lender’s or Issuing Bank’s internal legal, compliance, risk management, credit or investment committee members. Each Participant (and any sub Participant) shall be subject to this Section 10.09 to the same extent
as if such Person were a Lender hereunder.
For purposes of this Section 10.09, “Information”
means all information received from or on behalf of any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary or Affiliate thereof or their respective businesses (including with respect to the target of any actual or
potential acquisition or other Investment), other than any such information that is available to any Agent, any Lender or any Issuing Bank on a non-confidential basis prior to disclosure by any Loan Party or
any Subsidiary thereof; it being understood that no information received from the Borrower or any Subsidiary or Affiliate thereof after the date hereof shall be deemed non-confidential on account of such
information not being clearly identified at the time of delivery as being confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 10.09 shall be considered to have
complied with its obligation to do so in accordance with its customary procedures if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential
information.
Each Agent, each Arranger, each Lender and each Issuing Bank acknowledges that (a) the Information may include trade
secrets, protected confidential information, or material non-public
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information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of such information and (c) it will handle such
information in accordance with applicable Law, including United States Federal and state securities Laws and to preserve its trade secret or confidential character.
The respective obligations of the Agents, the Arrangers, the Lenders and any Issuing Bank under this Section 10.09
shall survive, to the extent applicable to such Person, (x) the payment in full of the Obligations and the termination of this Agreement, (y) any assignment of its rights and obligations under this Agreement and (z) the resignation or
removal of any Agent, Swing Line Lender or Issuing Bank.
For the avoidance of doubt, nothing in this Section 10.09 shall prohibit
any Person from voluntarily disclosing or providing any information within the scope of this Section 10.09 to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the
extent that any such prohibition on disclosure set forth in this Section 10.09 shall be prohibited by the laws or regulations applicable to such Regulatory Authority.
SECTION 10.10 Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each Issuing Bank is hereby
authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, 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, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or such Issuing Bank to or for the credit or the account of any Loan Party against any and all of the
obligations of such Loan Party then due and payable under this Agreement or any other Loan Document to such Lender or such Issuing Bank, irrespective of whether or not such Lender or such Issuing Bank shall have made any demand under this Agreement
or any other Loan Document; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing
Banks and the Lenders and (b) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
The rights of each Lender and each Issuing Bank under this Section 10.10 are in addition to other rights and remedies (including other rights of setoff) that such Lender or such Issuing Bank may have. Each Lender and each
Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
SECTION 10.11 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid
or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest,
(b) exclude voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
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SECTION 10.12 Counterparts; Integration; Effectiveness. This Agreement and each
of the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging (including in .pdf format) means shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 10.13 Electronic Execution of Assignments and Certain
Other Documents. The words “delivery”, “execution”, “execute”, “signed”, “signature”, and words of like import in or related to this Agreement or any document to be signed in connection
with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Committed Loan Notices, Swing Line 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 and enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
SECTION 10.14 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 the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative 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.
SECTION 10.15 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.16 GOVERNING
LAW.
(1) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(2) THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR
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PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES 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. EACH PARTY HERETO AGREES THAT THE AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION
WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.
(3) THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (2) OF THIS SECTION 10.16. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
SECTION 10.17 WAIVER OF RIGHT TO TRIAL BY
JURY. EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.17.
SECTION 10.18 Binding
Effect. This Agreement shall become effective when it shall have been executed by the Borrower and the Administrative Agent 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 Borrower, each Agent, each Lender, each other party hereto and their respective successors and assigns.
SECTION 10.19 Lender 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 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, in
each case unless such action is expressly permitted by Section 10.03. The provision of this Section 10.19 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 10.20 Use of Name, Logo, Etci. . Each Loan Party consents to the
publication in the ordinary course by the Administrative Agent or any Arranger of customary advertising material relating to the financing transactions contemplated by this Agreement using such Loan Party’s name, product photographs, logo or
trademark; provided that any such material shall be provided to the Borrower for its review a reasonable period of time in advance of publication. Such consent shall remain effective until revoked by such Loan Party in writing to the
Administrative Agent and the Arrangers.
SECTION 10.21 USA PATRIOT Act. Each Lender that is subject to the USA PATRIOT Act and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance
with the USA PATRIOT Act and the Beneficial Ownership Regulation. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that is required in order for the
Administrative Agent or such Lender to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation.
SECTION 10.22 Service of Process. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
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), the Borrower acknowledges and agrees that (a) (i) the arranging and other services regarding this Agreement provided by the Agents,
the Arrangers and the Lenders are arm’s-length commercial transactions between the Borrower and their respective Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders,
on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate and (iii) the 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; (b) (i) each Agent, each Arranger and each Lender 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 Borrower or any of their respective Affiliates, or any other Person and (ii) none of the Agents, any Arranger nor any Lender has any
obligation to the 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 (c) the Agents, the Arrangers, the
Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and their respective Affiliates, and none of the Agents, any Arranger nor any Lender has any
obligation to disclose any of such interests to the Borrower or any of their respective Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Agents, any Arranger or any
Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
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SECTION 10.24 Release of Collateral and Guarantee Obligations; Subordination of
Liens.
(1) The Lenders and the Issuing Banks hereby irrevocably agree that the Liens granted to the Administrative Agent or the
Collateral Agent by the Loan Parties on any Collateral shall be automatically released (a) in full, upon the satisfaction of the Termination Conditions, (b) upon the sale or other transfer of such Collateral (including as part of or in
connection with any other sale or other transfer permitted hereunder) to any Person other than another Loan Party, to the extent such sale, transfer or other disposition is made in compliance with the terms of this Agreement (and the Collateral
Agent may rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (c) to the extent such Collateral is comprised of property leased to a Loan Party by a Person that is
not a Loan Party, upon termination or expiration of such lease, (d) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in
accordance with Section 10.01), (e) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guaranty (in accordance with the
second succeeding sentence), (f) as required by the Collateral Agent to effect any sale, transfer or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Collateral Documents and
(g) to the extent such Collateral otherwise becomes Excluded Assets. Any such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those
being released) of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance
with the provisions of the Loan Documents. Additionally, the Lenders and the Issuing Banks hereby irrevocably agree that the Guarantors shall be released from the Guaranties upon consummation of any transaction or the occurrence of any event
permitted hereunder resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary, or otherwise becoming an Excluded Subsidiary (but in the case of an Excluded Subsidiary joined as a Guarantor pursuant to the Excluded Subsidiary Joinder
Exception, subject to the Guarantor Release Election and the satisfaction of the related conditions in the second to last proviso in the definition of “Collateral and Guarantee Requirement”); provided that no wholly-owned
Restricted Subsidiary that is a Loan Party and that becomes an “Excluded Subsidiary” solely by virtue of it no longer being a wholly-owned Subsidiary of the Borrower shall be released from its Guaranty solely by virtue of a transaction
pursuant to which the relevant Equity Interests of such Restricted Subsidiary are transferred to an Affiliate of the Borrower unless (x) such transaction has a bona fide business purpose and is not entered into with the primary purpose of
releasing the Guaranty made by such Loan Party and (y) such released Restricted Subsidiary does not own or exclusively license (excluding exclusive licenses limited by territory or field of use) any Material Intellectual Property, it being
understood that (i) the primary purpose of any such transaction shall be determined by the Borrower in good faith and (ii) in no event shall the foregoing provisions prevent the release of a Subsidiary that otherwise constitutes an
“Excluded Subsidiary”. The Lenders and the Issuing Banks hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver any instruments, documents, consents, acknowledgements and agreements
necessary or desirable to evidence or confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender or Issuing Bank. Any representation, warranty
or covenant contained in any Loan Document relating to any such released Collateral or Guarantor shall no longer be deemed to be repeated.
(2) Notwithstanding anything to the contrary contained herein or any other Loan Document, when the Termination Conditions are satisfied, upon
request of the Borrower, the Administrative Agent or Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party) take such actions as shall be required to release its security interest in all Collateral, and
to release all obligations under any Loan Document, whether or not on the date of such release there may be any (a) Hedging Obligations in respect of any Secured Hedge Agreements, (b) Cash Management
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Obligations in respect of any Secured Cash Management Agreements, (c) Specified Letter of Credit Obligations in respect of any Specified Letter of Credit, (d) contingent obligations not
then due and (e) Outstanding Amount of L/C Obligations related to any Letter of Credit that has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable Issuing Bank or deemed reissued under another
agreement reasonably acceptable to the applicable Issuing Bank. Any such release of a security interest in the Collateral and Obligations under any Loan Document (including under the Guaranty) shall be deemed subject to the provision that such
security interest in the Collateral and Obligations under any Loan Document (including under the Guaranty) shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed and/or secured thereby shall be
rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made. The immediately preceding provision shall survive the payment in full of the
Obligations and the termination of this Agreement.
(3) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the Borrower in connection with any Liens permitted by the Loan Documents, the Administrative Agent or Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Secured Party) take such actions
as shall be required to subordinate the Lien on any Collateral to any Lien permitted under Section 7.01 to be senior to the Liens in favor of the Collateral Agent.
SECTION 10.25 Acknowledgement and Consent to Bail-In of Affected Financial
Institutions. Solely to the extent any Lender or Issuing Bank that is an Affected Financial Institution is a party to this Agreement, notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or
understanding among the parties hereto, 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:
(1) 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
(2) the effects of any Bail-In Action on any such liability, including, if applicable:
(a) a reduction in full or in part or cancellation of any such liability;
(b) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected
Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such
liability under this Agreement or any other Loan Document; or
(c) 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
Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any 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 hereto hereby acknowledge and agree as follows with respect to the
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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):
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) 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.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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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.
TPG RE FINANCE TRUST, INC., as the Borrower
By:
/s/ Brandon Fox
Name:
Brandon Fox
Title:
Chief Accounting Officer
[Signature Page to Credit
Agreement]
WELLS FARGO BANK, N.A., as Administrative Agent and Collateral Agent
By:
/s/ Jackson Helms
Name:
Jackson Helms
Title:
Vice President
WELLS FARGO BANK, N.A., as a Revolving Lender, Term Lender, Issuing Bank and Swing Line Lender
By:
/s/ Jackson Helms
Name:
Jackson Helms
Title:
Vice President
[Signature Page to Credit
Agreement]
CITIBANK, N.A., as a Revolving Lender
By:
/s/ Saad Zaman
Name:
Saad Zaman
Title:
Authorized Signatory
[Signature Page to Credit
Agreement]
GOLDMAN SACHS LENDING PARTNERS, as a Revolving Lender
By:
/s/ Dana Siconolfi
Name:
Dana Siconolfi
Title:
Authorized Signatory
[Signature Page to Credit
Agreement]
JPMORGAN CHASE BANK, N.A., as a Revolving Lender
By:
/s/ Alevtina Dudyreva
Name:
Alevtina Dudyreva
Title:
Executive Director
[Signature Page to Credit
Agreement]
EX-99.1
EX-99.1
Filename: d943461dex991.htm · Sequence: 3
EX-99.1
Exhibit 99.1
TPG RE Finance Trust, Inc. Announces Closing of New $400 Million Senior Secured Term Loan B and $100 Million Revolving
Credit Facility
May 14, 2026
NEW
YORK—(BUSINESS WIRE) — TPG RE Finance Trust, Inc. (NYSE: TRTX) (“TRTX” or the “Company”) today announced that it closed on a Term Loan B for an aggregate principal amount of $400 million due in
2033 and a $100 million Revolving Credit Facility due in 2031. The Company intends to use the net proceeds from the Term Loan B and Revolving Credit Facility to repay outstanding indebtedness, including partially funding the redemption of the
Company’s TRTX 2022-FL5 collateralized loan obligation, or for other general corporate purposes. The Term Loan B priced at 99.75% and bears interest at Term SOFR plus 275 basis points and the Revolving
Credit Facility bears interest at Term SOFR plus 200 basis points.
Doug Bouquard, Chief Executive Officer of TRTX, said: “We believe that the
closing of this financing further expands our best in-class, diversified liability structure at an exciting moment for TRTX.”
ABOUT TRTX
TPG RE Finance Trust, Inc. is a commercial
real estate finance company that originates, acquires, and manages primarily first mortgage loans secured by institutional properties located in primary and select secondary markets in the United States. The Company is externally managed by TPG RE
Finance Trust Management, L.P., a part of TPG Real Estate, which is the real estate investment platform of global alternative asset management firm TPG Inc. (NASDAQ: TPG). For more information regarding TRTX, visit
https://www.tpgrefinance.com/.
FORWARD-LOOKING STATEMENTS
This press release contains “forward-looking statements” within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements are subject to various risks and uncertainties, including, without
limitation, statements relating to the performance of the investments of TPG RE Finance Trust, Inc. (the “Company” or “TRTX”); global economic trends and economic conditions, including heightened inflation, slower growth or
recession, changes to fiscal and monetary policy, higher interest rates, tariffs and international trade policies, stress to the commercial banking systems of the U.S. and Western Europe, labor shortages, currency fluctuations and challenges in
global supply chains; the Company’s ability to originate loans that are in the pipeline and under evaluation by the Company; financing needs and arrangements; and the risks, uncertainties and factors set forth under the heading “Risk
Factors” in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025, as such risk factors may be updated from time to time in the Company’s periodic filings
with the Securities and Exchange Commission (the “SEC”), which are accessible on the SEC’s website at www.sec.gov. Forward-looking statements are generally identifiable by use of forward-looking terminology such as “may,” “will,” “should,” “potential,” “intend,” “expect,” “endeavor,” “seek,”
“anticipate,” “estimate,” “believe,” “could,” “project,” “predict,” “continue” or other similar words or expressions.
Forward-looking statements are based on certain assumptions, discuss future expectations, describe existing or future plans and strategies, contain projections of results of operations, liquidity and/or
financial condition or state other forward-looking information. Statements, among others, relating to the intended use of the net proceeds from the Term Loan B and Revolving Credit Facility and the closing of
this financing further expanding our best-in-class, diversified liability structure are forward-looking statements, and the Company cannot assure you that it will
achieve such results. The ability of TRTX to predict future events or conditions or their impact or the actual effect of existing or future plans or strategies is inherently uncertain. Although the Company believes that such forward-looking statements are based on reasonable assumptions, actual results and performance in the future could differ materially from those set forth in or implied by such
forward-looking statements. You are cautioned not to place undue reliance on these forward-looking statements, which reflect the Company’s views only as of the
date of this press release. Except as required by law, neither the Company nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements appearing in this
press release. The Company does not undertake any obligation to update any forward-looking statements contained in this press release as a result of new information, future events or otherwise.
INVESTOR RELATIONS CONTACT
+1 (212) 405-8500
IR@tpgrefinance.com
MEDIA CONTACT
TPG RE Finance Trust, Inc.
Courtney Power
+1 (415)
743-1550
media@tpg.com
2
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